FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

Claimant had been employed as a machinist helper and as a Machinist by the Carrier since 1948.

On September 28, 1961, Claimant was notified that he was suspended pending an Investigation which was held on October 3, 1961, the transcript of which appears in the record before us.

Claimant was notified on October 17th, 1961 that he was dismissed from the service of the Carrier effective October 18, 1961. He is here seeking reinstatement under Rule 34 of the Controlling Agreement.

Carrier raises several procedural objections which we dispose of before proceeding to the merits of the dispute.

1.) Carrier states that we are without jurisdiction in this matter, since the dispute has not been handled in the "usual manner", in that the Claimant has enlarged his claim upon coming to the Adjustment Board by seeking here, for the first time, "full payments toward his coverage under the existing Health and Welfare and Life Insurance provisions . . . ." While it is true that Rule 34(b) seems to contemplate only the restoration of seniority rights and pay for time lost, nevertheless, a complete restoration of a dismissed employe would invalidate the dismissal; treat it as void; and reinstate the Claimant for all purposes as if he had never been dismissed. We cannot penalize Claimant for seeking what might properly flow from a complete exoneration. This objection is overruled.

2.) Carrier asserts that Claimant has not complied with Section 1(b) of Article V of the August 21, 1954 Agreement because the letter of declination dated January 12, 1962 was never rejected in writing. Thus, says Carrier, the matter was mishandled on the property and the claim is barred and should be dismissed.

It is true that the General Chairman wrote to the Shop Superintendent on December 7, 1961, "appealing" the denial of the claim which was not denied in writing until January 12, 1961. And it is true that the Shop Superintendent Bittner, and the Assistant to the Vice-President in charge of personnel raised this objection in correspondence with the General Chairman. (cf. Carrier's exhibits "J" and "K".)

However, the record shows later correspondence between the Assistant to the Vice President (Mr. Amour) and the Machinists' General Chairman treating the matter only on the merits (cf. Employes' Ex. "I" and "J"). We deem this a sufficient waiver to consider the matter on its merits, and to not declare the matter closed.

3.) Carrier objects to our consideration of Exhibits "C", "D" and "E" of the Employes' submission as obviously not considered on the property. We uphold this objection and decline to consider these exhibits as well as the counter-exhibits attached to the Carrier's rebuttal.

On the merits of this dispute, we have examined the transcript and have examined all other matters submitted by the parties.

Claimant was charged with refusing to perform services as outlined by his supervisor, leaving his assignment without proper authority, and with falsifying his time record.

A brief resume of the evidence adduced at the hearing shows that Claimant was assigned to operate Boring Mill No. 14 and that on the night in question, Claimant refused to operate the Boring Mill, advising his foreman that he would not because it was unsafe to operate. The record discloses that the chip guard for the Mill had been removed on September 23rd. Claimant had operated the Mill on two previous shifts in this condition, and the record discloses that he had complained to his committeeman about the situation, and he states that he had also complained to the Shop Superintendent about it.

After advising his Foreman that he would not work the Mill, Claimant filled out his time card for eight hours and went home. There is a conflict of evidence as to what the conversation consisted of at this point, but it is not a decisive factor in our consideration of this dispute.

There are Safety Rules in effect at this Shop.

Rule 4 of the Safety Rules reads:

"4. Employes must determine by examination that the tools, machinery and equipment to be used are in good order; when in doubt the foreman must be consulted."

Rule 7 of the Safety Rules reads:

"All safety guards must be in place before a machine is put in motion."

It is undisputed that the chip guard was not in place, and we find that this created a hazardous condition, justifying Claimant in refusing to work on the machine, notwithstanding the fact that he had worked on it at least two previous shifts. However, we cannot agree that his conduct was in accordance with the orderly procedures for the resolution of his grievance.

Claimant was apparently found guilty of all three charges and we shall deal with them in order.

1. The charge of refusing to perform services as outlined by

his supervisor.

While there appears to be no direct order to Claimant to operate the machine after he had first refused to do so, he did refuse to operate it, and justifiably so, for we have found that the lack of a chip guard was a hazardous condition.

2. The charge of leaving his assignment without proper

authority.

This is where the Claimant failed to follow the orderly procedure set up in the Controlling Agreement, but his aggravation can be partly attributed to the Carrier's insistence that a hazardous machine be operated.

3. The charge that Claimant falsified his time card.

Claimant admits that he was in error in filling out his time card as he did, yet the record indicates that prior to the August 21, 1954 Agreement, this was a method used for the filing of a time claim. The circumstances under which Claimant filled this out were such as to negate any sinister implication of "falsifying" a time card, and the evidence does not support this charge. It supports a headstrong mistake on his part.

We conclude that only one of the charges was substantiated in this record, and that was Claimant's failure to follow the orderly procedures contained in the Controlling Agreement. Some discipline was called for, but not of the severity of that imposed by the Carrier which maintained the unsafe condition which precipitated this whole dispute.

The original suspension from September 28, 1961 to October 17th 1961 was a proper measure of discipline, and the dismissal of Claimant was unreasonable under the facts in this record.

AWARD