Form 1 NATIONAL RAILROAD ADJt1STt4ENT BOARD Award No. 7138
 SECOND DIVISION Docket No. 6846
 R
 2-BRCofC-F&0-f 76

 Parties to Dispute:
'ihe Seconal Division con:y:y.s~:ed of she regular members and in addition Referee foaa E. Lischen when award was rendered.

 lritera5a t:rc,na? Brotherhood of Firemen & Oilers
 c~:` Sy, Fvd:~ration No. 6 - Railway Employest
 Perpartmeaa, A.F.L. - C. I. 0.

 The Belt Niiilway Company of Chicago

 Dispute: Claim of Employes,,

 Findings:
2,

 That Cleveland Whalum, employed as a ,Stationary Engineer by the Belt Railway Company of Chicago, was unjustly given four days' actual suspension beginning at 3:59 P.M.$ March 23, 1974, and ending at 4:00 P.M., March 27, 1974.
.That accordingly the Belt Railway Company of Chicago he ordered to compensate Stationary Engineer Cleveland Whalum in the amount of eight (8) hours per day at the applicable Stationary Engineers' rate of pay of $5.55 per hour for each of the dates of march 23$ 24, 25 and 26, 1974.

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

 The carrier or carriers and the employs or employes involved in this dispute are respectively carrier and employs 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.

 This case is related to our earlier Award 7137 in that the Claimant in this case, Cleveland Whalum is the Local Union Representative of the Organization and represented Mr. Harris in the handling of the earlier case. Reference to the other Award will show that among points a t issue was the time when a steam compressor was shut down on~March 1, 1974. Mechanical recording devices prepare charts which monitor the operations of that compressor and which can be read after the fact to indicate running and shut down times. The instant case arises out of a search of the whereabouts of the chart of March 1, 1974, which turned up missing on March 5, 1974, when the
 Form 1 Award No. 7138
 Page 2 Docket No. 6846

Chief of Motive Power began his investigation into the bearing burnout on the steam air compressor. The facts of record herein are not disputed.

 The charts in question usually are kept on a spindle on a table in the Powerhouse. On March 5, 1974] the chart for March 1, 1974, was missing and Chief Engineer Flanagan reported same to V. L. Smith, Carrier's Chief of Motive Power. Smith instructed Flanagan to contact Cleveland Whalum, Claimant herein, when the latter came on duty at 4;00 P.M. on March 5, 1974, and asked the latter where the records were. The ensuing events are best described by verbatim quotation from the investigation transcript as follows:





















Form 1 Award No. 7138
 Page 3 Docket No. 6846
 2-BRCofC-F&0-'76
 Q. Did you show him where the charts were?
 A. No. I told him that they had been up there in the drawer
 and I put them back up on the spindle.
 MR. SMITH: Q. Mr. Harris, you stated that the charts were in
 the drawer. Is this the proper place where we file the charts?
 A. No.
 Q. Mr. Harris, do you know how these charts got into this
 particular drawer?
 A. I had been looking over the charts because I was coming up
 for an investigation and I was looking over the charts to deter
 mine when the steam driven air compressor. was shut off ors March 1,
 1974. And by mistake I just put them in the drawer because I was
 going to look at them the next night. So when I came back the
 next night, I looked them over, and when I finished with them,
 I put them back on the spindle, so the following morning of the
 sixth Crenshaw and myself was in the washroom. So Mr. Flanagan,
 came into the washroom and he asked me did I know anything about
 the charts. So I said, Yeah, they were there all the time. So
 I put them back on the spindle. And that was all he said to me.

(hereafter, Mr. Whalum received a notice dated March 6, 1974, reading as follows:




Form 1 Award No. ?138
 Page 4 Docket No. 6846


                      V.. SMITH

                      Chief of Motive Power"


        Rule "S" reads as follows-


        "RULE S -

        Unauthorized possession of any article of freight, company material, or any other property is prohibited.


              Unauthorized removal or disposal of

        an article of freight, company material or any other property from railroad property or property served ~by the railroad is prohibited."


Following a rescheduled hearing on March 20, 1974, Claimant was issued a Notice of Discipline dated March 20, 1974, assessing $n actual suspension of four, (4) days from March 23 - 27, 1974. Claimant served the suspension and on April 22, 1974, initiated the instant claim for reimbursement of lost wages. Following denial of the appeal by Mr. Smith a further appeal was denied by Carrier's Director of Personnel on June 5, 1974, as follows:

        "I have your letter dated June 3, 1974, appealing the claim for four days pay for Stationary Engineer Cleveland Whalum who, you allege, was improperly disciplined by four days suspension from service following the investigation held on March 20, I974, for the purpose of ascertaining Mr. Whalum's responsibility, if any, for unauthorized 2ossession of certain powerhouse charts. (Emphasis in original)


        In the second paragraph of your June 3rd letter you state that you can find nothing to indicate that the Carrier proved Stationary Engineer Whalum was guilty of the charges, stating further that the charges "being that he had unauthorized possession of certain powerhouse documents on March 5, 1974." If you will reread the investigation and particularly the notice of investigation, Mr. (ahalum was not charged with having unauthorized possession but as you point out, the investigation proves that someone had unauthorized possession of them and it further points out that Mr. Whalum was aware of such unauthorized possession and having such knowledge failed to fulfill his obligation, not only as an employe but as an employe representative.

Form 1 Award No. 7138
 Page .5 Docket No. 6846
 . ' 2-SRCofC-F&-0-' 76
 There is no valid basis for t:6xs claim and it is declined."
 The facts of record herein ~°annot be.read in a vacuum but must
 be considered together with the facts addressed in our Award 7137.
 Taken together these facts produce a highly unique
 situation which must be treated as 6,ch. Several points stand out re
 garding March 5, 1974, 1) Whal.um was acting as representative of Harris
 who already had been brought up on e%arges regarding the bearing burn-out;2)
 at no time did Whalum have actual physical possession of the chart but he
 knew that Harris had taken them from the spindle to study them. There is
 no evidence that Whalum knew Harris nod (laced them in a drawer;3) Flanagpn
 never asked Whalum directly where t:he charts were even though Whalum had
 said he knew where they were. Whalum did not volunteer any knowledge he
 had relative to Harris' possession;4) Flanagan asked Harris directly where
 the charts were, received an answer and took possession of the charts on
 March b, 1974; 5) There is no showing that the incident impeded the inves
 tigation of the bearing burn out or prejudiced Carrier's presentation at
 the Harris investigation on March 11, 1974.

 We find that the issue %n this particular case narrows to a determination whether in the unique circumstances and facts here present, Claimant's failure to volunteer knowledge of Harris' possession amounted to his own unauthorized possession of certain powerhouse chart records and making them unavailable to the Company in violation of Rude S. Careful consideration of all the facts and arguments compels us to conclude it did not. The overriding factors which compel this conclusion are the representativeclient relationship between Whalum and Harris and the fact that Whalum was never asked directly where the charts were.

 In so holding we do not imply approval of the removal of the Carrier's chart without permission nor do we license prevarication in the pursuit of representation. We hold only that in the particular facts herein Whalum's failure to volunteer information which would implicate his client without being asked directly was not tantamount to unauthorized possession or withholding Company property, the offense with which he was charged. Therefore, the charges against him were not proven on the record and the claim must be sustained.

                    A WA R D


        Claim sustained*


NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Form 1 Award No. 7138
Page 6 Docket No. 6846
 2-BRCofC-F&0-'76

 Attest: Executive Secretary
 National Railroad Adjustment Board

 'By:.
    , /

    . . osema~rie Branch - Administrative Assistant


,1?ated at Chicago Illinois, this 24th day of Septembers 1976.

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