Foam 1 NATIONAL RAILROAD ADJUSTMEiTI' BOARD Award No. 7785
 SECOND DIVISION Docket No. 7695
 2-13P3I-MA-' 79






Dispute: Claim of 12.nployes








Findings:

 The Second Division of the Adjust.rent Board, upon the -,,,,bole record and. all the evidence, finds that:

 The carrier Or carriers and 'the elapl O ye or Pvm)i.pyeS in.-volveC% in this dispute axe respectively carrier and emcplo~re withiz~ ti.e meaning of the Railway Labor Act as appro·Y ed June 21, 1931+.

 This Division of the Adjustment Beard has jurisdiction over the dispnte involved herein.

Claimant i~r~.s censured and suspended f'xor_ April 21 to May 11., 1976 fox a7-1 egedly failing to cos:yl y .,Tith instructions not to purchase soda pop from a soft-drink dispensing machine placed in the shop by another employee, without :anageznenv approval. The zraCh7.rle had been :in the shop fox some 2 to 4 weeks before the day the incident giving ,rise to this case occurred.

 At about x+:00 p.m. on the day in question, C",1n.:ua,nt bought two cans of pop from the vending machine, and zras obcexved leaving the machine with soda cans in his hands by the Assistarst. T,.astex T.',ech_~.nic, tur. Jaeh, who had apparently just learned about the i:raehe_ne. Mr. Jaeb zemaxlved to Claimant that the machine had been a.:Llc:gally placed rsn. the ship. At that tame,. Mr. Jaeb issued no i7zstxuctiorzs or direct :ions to Clairl,~nt or to other employees to discortcinuc buyary soy"t drinks from the vending machine.

 I
 Form 1 Page 2

Award No. 7785

Docket No. 795

2-BU-MA-79


At 5:30 P.M. on the same day, smile the vending machine was in process of being removed (its contents havinbeen er.iyti.ed), Claimant was obse.rved_ by Mr. Jaeb approaehir_. the machine. Yr. JAN testified he told Clanant, "I suggest you better not buy any pop and ... go to work where yo-0 belong." Claimant bcvght two cans of soda from the owner of the Vending machine, deposited them in the lochex noun and then returned to his work station.

 Claimant denied at the investigation Mot he heard Lira Jaeb's remarks and that he mould not have bou;'r_'i,1L=._~ ,pop :i ~.' ?u~ 1_<~,d heat°a him. Another employee, standing near the two men, testified that he heard the instructions.

 At about 5: 45 P.m. the same day, Claimant was removed from service pending investigation, but no cry arses were ,pxofe:rxed not reason given barn at that time for such action.

 The Board is of the opinion that Clailr:art's action does not warrant
 the penalty imposed, no instructions or directions were issued by Mr.
 Jaeb to Claimant, ox to any other e:vnloyae, not to buy pop from the illegal
 vending maclv-~_rm. Mr. ~-~eb had leaxnwd a'bou't the machine shot ply before
 ~ : 00 p.m. t11.-'c day. ll.° saw C1aLn :znt and ot.heos patronjzir,~; the machine,
 buying ax drinking soda pop. Yet he gave no explicit instructions or
 orders directing them riot to use the vend.:i_nE~ r,~,4onirAc. ie,ven at the time of
 the incident at 5:30 P.rn., which gave rise to this case, he allegedly
 advised Claimant, "I suf~Pst you b::wt-i,ex not burr any pop ....". (Underscoring
 ad.d.ed).

 Rule 35(b) of the Agreement between the parties refers to employees "who may he held out o:! se=rvice in cases involving serious infraction or' rules pending investigation ...." (Underscoring added . In our view, buying a can of pop, especially in light of the inexplicit statements of h7r. Jaeb, does not justify the penalty meted out to Claimant, although we question Claimant's judgment in buying the pop after he had been notified earlier that the machine was i7_le6al and that it was in the ,process of being removed from the premises. Nevertheless, Claimant's action does not, as we see it, constitute a serious infraction contemplated by Fine 35(b) as a basis fox discipline. Accordingly, vie will sustain the claim.

 A W A TZ D

 Claim sustained.

 Attest: Executive Secretary
 National Rai1inad Adjustment Board

TMTI0Mh RAILROAD AD.TUSTP7,T.Zfi BOARD

By Order of Second Division






Dated at Chicago, I7_linois, this 4th day of January, 1.97y.