Award Nos. 3 &  4
                                                    Case Nos. 3 & 4
                      PUBLIC LAW BOARD NO. 4178
  BROTHERHOOD OF LOCOMOTIVE ENGINEERS
                    VS.
                                              Parties to Dispute
  CSX TRANSPORTATION, INC.
  (Former Seaboard System Railroad,
  Former Louisville and Nashville
  Railroad company)
  STAT124ENT OF CLAIM:
       11 (Claim No. 3) Claim of Engineer T. R.  French,  NC&STL
       Seniority District #4, Nashville  Division,  that  he  be
       allowed a physical examination  in  accordance  with  the
       provisions of the August 1,  1981,  Physical  Examination
       Agreement."
       "(Claim No. 4) French, T. R., Engineer, NC&STL  Seniority
       District #4, Nashville  Division,  claim  for  lost  time
       account of beizig held out of service  by  Chief  Medical
       Officer C. A. Mead, the first and second payroll  periods
       of  January  and  the  first  pay  period  of   February,
       including the months of March through May, 1984.1'
                               FINDINGS
       Upon the whole record and all the evidence,  the  Board  finds
  that the parties herein are Carrier and Employee within the meaning
  of the Railway Labor Act, as amended, and that the  Board  is  duly
  constituted by agreement and has jurisdiction of  the  parties  and
  of the subject matter.
       Claimant entered the Carrier's  service  as  a  train  service
  employee  in  1970.    Subsequently  he  entered   the   Apprentice
  Engineers' Program  and  on  February  5,  1979,  was  promoted  to
  position of Locomotive Engineer on the Nashville  Division  of  the
  former L&N Railroad.

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       on  August  13,  1982,  the  Carrier's  Chief   Medical   Officer
  advised Claimant that he was disqualified from service  due  to  high
  blood pressure pending  treatment  and  evidence  that  the  condition
  was under control.    He returned to  work  on  October  4,  1982  and
  performed service until October 30, 1983.      He  underwent   surgery
  identified as Ilaortofemoral bypass and left renal  bypass  graft"  on
  November 8,  1983.    This  was  Claimant  Is  second  bypass  surgery
  procedure, the first having been performed in 1977.
       Following evaluation of medical reports, the carrier  Is  Medical
  Examiner  advised  Claimant  on  December  21,  1982,  that   he   was
  medically disqualified from further service  as  locomotive  engineer.
  The BLE General Chairman  was  so  advised  under  the  1981  Physical
  Examination Agreement reading in part as follows:
       115.  Any employee hereunder, who in the Company Is  opinion
             fails to  pass  a  Company  physical  examination  may
             within fifteen  (15)  days,  at  his  option,  have  a
             review of his case in the following manner:
             (a)  In  the   event   the   Chief   Medical   Officer
                  determines   that   an    employee's     physical
                  condition is such that  it  will  interfere  with
                  the safe performance of  his  duties,  the  Chief
                  Medical Officer will report his findings  to  the
                  Carrier  and  if  it  is  decided  the   employee
                  should  be  removed   from   the   service,   the
                  department head  will  notify  the  employee  and
                  his General Chairman.,,
       The  General  Chairman  appealed  this  decision  and   named   a
  physician to carry forward the  following  provisions  of  the  1981
  Agreement:
             (b)  An employee  who  is  removed  from  the  service
                  account of  his  condition  may  appeal  from  an
                  adverse decision of his department  head  through
                  his General Chairman, provided  he  presents  his
                  General Chairman  with  evidence  of  a  thorough
                  examination    by   a   recognized     physician,
                  subsequent to his  rejection,  which  examination
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                  shows  conclusions  contrary  to  those  on  which
                  his rejection  from  service  was  based.  If  the
                  decision  is  appealed,  the  employee   involved,
                  or his representative,  will  select  a  physician
                  to  represent  him  notifying  the   Director   of
                  Labor Relations accordingly, and within f if  teen
                  days after  such  notification,  the  Director  of
                  Labor  Relations  will  select  a   physician   to
                  represent the  Company  in  conducting  a  further
                  physical  examination.  The  two  physicians  thus
                  selected will  examine  the  employee  and  render
                  a   report   within   a   reasonable   time,   not
                  exceeding fifteen  days.  If  the  two  physicians
                  thus  selected  shall   agree,   the   conclusions
                  reached by them will govern."
       The  Carrier  rejected  the  General  Chairman's  request   for   a
  medical  panel  on  the  premise  that  there  had  been   no   evidence
  furnished of  an  examination  showing  conclusions  contrary  to  those
  on which the disqualification was  based.  The  record  indicates  that
  what was furnished was a statement from Claimant I s  surgeon  stating
  that Mr. French was "recovering nicely  from  his  procedure  [and)  ...
  I see no  contraindication  to  his  performing  his  normal  duties  as
  a locomotive engineer."
       In  March  of  1984,  Claimant  filed  a  complaint   against   the
  Carrier with  the  Department  of  Labor,  incident  to  his  not  being
  permitted to return to work.  Handling  with  the  Department  of  Labor
  resulted in a physical examination  by  a  physician  in  Nashville  who
  reported in part as follows on October 9, 1984:
       14 .... Mr.  Thomas  French  can  be   employed   though   the
       restrictions  of  a  train  engineer  as   imposed   by   the
       company and the industry  probably  would  rule  him  out  as
       a candidate for this position.       He  certainly  would  be
       capable of being retrained  for  less  risky  jobs  with  his
       coronary artery disease.       It  should  be  of  modest  or
       limited physical requirements ... 11
       The  Department  of  Labor  did  not  pursue  the   complaint   and
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  Carrier agreed to consider Claimant for other positions  but  he  was
  not interested.
       Subsequently,    the   General   Chairman    again     requested
  establishment of a medical panel,  which  request  was  again  denied
  by  the  Carrier on  premises  previously stated.       The   parties
  ultimately agreed to submit the matter to this  Board  for  decision,
  the claims for our consideration being identified in  the  "Statement
  of Claims" above.
       The record in this case shows that the Carrier's  Chief  Medical
  Examiner wrote Claimant on February 4, 1987, advising that  he  would
  be  considered  for  unrestricted  service  provided  his   physician
  furnished results of  recent  tests,  medical  history,  evaluations,
  etc. With letter of March 3, 1987, this data  was  furnished  to  the
  Carrier, and on May 5, 1987, Claimant was advised that he  was  found
  medically qualified to return  to  service  as  engineer  conditional
  upon follow-up reports every three  months.  Accordingly,  Claim  No.
  4 covers the period from January, 1984, until May 5, 1987.
       It is the position of the Employees that  Claimant  should  have
  been  examined  by  a  two  or  three  doctor  panel   as   initially
  requested.   They  state  the  1981  Physical  Examination  Agreement
  provided a means to redress an adverse decision.         They   state
  Carrier's denial of the request  was  without  basis  because  it  is
  evident  Claimant's  doctor  had  conducted   a   thorough   physical
  examination and his opinion was contrary to  that  of  the  Carrier's
  Medical Examiner. The Employees  also  state  that  when  they  again
  requested a medical  panel,  the  Carrier  arbitrarily  denied  their
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  request and  continued  to  violate  Article  5(b)  of  the  Physical
  Examination Agreement.
       The Employees state that when they  continued  to  pursue  their
  request under the 1981 agreement, they  furnished  formal  statements
  from Dr.(s) Wray and  Finch  that  Claimant  should  be  returned  to
  service as locomotive  engineer  without  restriction.  Nevertheless,
  the Carrier's Medical Examiner  did  not  approve  Claimant's  return
  to  service  and  did  not  provide  the  organization  with  medical
  evidence to support the disqualification  or  denial  of  request  to
  establish a panel. Award 65 of Public Law  Board  1241  is  cited  in
  support of this point.
       The  Employees  argue  that  Carrier's  Medical  Examiner  never
  examined Claimant,  so  his  disqualification  could  not  have  been
  based on competent evidence. It is  also  alleged  that  the  Medical
  Examiner  seemingly  challenged  the  veracity  of  his  professional
  colleagues. This resulted in an  unjust  delay  of  Claimant's  right
  to be examined by a panel and  deprived  him  of  his  seniority  and
  gainful employment, say the Employees.
       It is the Carrier's position that  Claimant  did  not  meet  its
  medical standards during the period in  question.  The  record  shows
  he had two bypass procedures  and  a  diagnosis  of  coronary  artery
  disease.    No  doctor  who  treated  him   asserted   any   contrary
  conclusion  to  that  upon  which  his  disqualification  was  based.
  Thus, says  the Carrier, the 1981 Agreement did not  require  that  a
  medical panel be assembled.      The  pertinent  provision  reads  as
  follows:

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       11 .... provided he presents  his  General  Chairman  with
       evidence  of  a  thorough  examination  by  a   recognized
       physician,  subsequent  to  his  rejection,  which   shows
       conclusions contrary to those on which his rejection  from
       service was based."
       The Carrier also points out that an interpretation of  the  1981
  Physical Examination Agreement, signed February  12,  1987,  supports
  its position with this language:
       "It  is  the  prerogative  of  the  Carrier  to  establish
       reasonable medical standards for its  employees  and  this
       Section 5 shall not be construed as a means  to  challenge
       such standards."
       The Carrier argues that it has not only the right but  also  the
  obligation to  implement  reasonable  standards  for  its  employees,
  giving consideration to the  individual,  fellow  employees  and  the
  public at large. Claimant was handled the same as  others  under  the
  Carrier's medical policy.
      Also,  says  the  Carrier,  the 1981 agreement does not guarantee
  that every case  involving  a  medically disqualified engineer will be
  taken to a two-doctor panel,  but only in those  cases  where  evidence
  of  a  thorough  examination  by  a  recognized physician shows conclusion
  contrary to  those  upon  which  rejection was based.
       The Carrier also cites several decision  of  Public  Law  Boards
  on  this  property  which  are  stated  to  recognize  the  right  to
  establish  and  implement  reasonable  medical  standards  for   its
  employees.
       This Board holds, as has been held in many awards,  that  it  is
  and should be the right and obligation  of  a  Carrier  to  establish
  and maintain medical standards for the craft or class  of  employees.
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  It has also been held that these standards must  be  reasonable  and
  applied uniformly. Nevertheless, the pivotal question in  this  case
  is whether or not there was compliance  with  a  specific  agreement
  covering such matters, i.e. ,  the  Physical  Examination  Agreement
  effective August 1, 1981, quoted, in part, earlier  in  this  Award.
       It is our interpretation of  the  above  provision  that  there
  must be  a  medical  dispute  as  to  the  condition  on  which  the
  disqualification was based if a medical panel is to be  established.
  The language requires that a thorough examination  by  a  recognized
  physician show conclusions contrary to those on which the  rejection
  was based.
       Claimant  produced  no  evidence  of  a  thorough  examinations
  showing "conclusions contrary...," etc.      Brief  statements  from
  physicians stating to the effect that  he  was  "recovering  nicely"
  and "no contraindication" to returning  to work  do not fulfil  what
  is required  by  the  1981  Agreement  before  a  medical  panel  is
  created.  It is noted that when Claimant took    the matter up  with
  the Department of Labor, the physician who examined  him  stated  on
  October 9, 1984, that 11 .... the restrictions of a  train  engineer
  as imposed by the company and industry probably would rule  him  out
  as a candidate for this position."
       It was not until the Carrier received report of March 3,  1987,
  that  its  Medical  Examiner  had  solicited,  that   any   detailed
  information was furnished. The Carrier  then  returned  Claimant  to
  work on May 5, 1987, as his condition apparently had improved.
       We hold that the Carrier did not err in refusing  to  create  a
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  medical panel
,under the 1981 Physical  Examination  Agreement.  Accordingly,  Claim
  No. 3 is denied.
       In view of the above, Claim No. 4  is  denied  except  for  the
  period March 17, 1987 to May 5, 1987. our finding here is  that  the
  Carrier's Medical Department should have been expected to rule  upon
  the data received within two weeks as opposed  to  two  months.  Our
  decision on this point is consistent  with  paragraph  5(e)  of  the
  1981 Agreement.
                                AWARD
       As indicated above.
                                 ORDER
       The Carrier is ordered to make this Award effective  within  30
  days of the date shown below.
  Employee Member                        'Ea-Tier' "er
                     Chair'man and 6butral Member
  Dated at Jacksonville, Florida,                                 1990