Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7885
 SECOND DIVISION Docket No. 7596
 2-AT&SF-FO-'79



Parties to Dispute: ( (Firemen & Oilers)
 (
 ( Atchison, Topeka & Santa Fe Railway Company

 Dispute: Claim of Employes:










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, 193+.

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

At the time of his dismissal, in early 1977, the claimant had about 4 years of service Vrith the Carrier. He had been employed as a Switching Tractor Driver for the Locomotive Department at San Bernardino.





















e - On July 22, 1975, the claimant waived investigation and thus accepted
 discipline in the form of 10 demerits for absenteeism.
 Form 1 Award No. 7885
 Page 3 Docket No. 7596
 2-AT&SF-FO-'79

 - The claimant at this stage had accumulated 50 demerits. In accordance with what appears to be standard practice, the carrier notified the claimant of the fact of the 50-demerit accumulation and. cautioned him that he was subject to dismissal if he accumulated 60 demerits. The claimant acknowledged receipt of the notification.

 - On November 22 , 1975, having gone four months without incurring further demerits, the claimant eras given a 10-demerit credit. He thus had a T+0-demerit record at this stage.

 - On March 22, 1976, having gone four additional months without incurring further demerits, the claimant was again given a 10-demerit credit. He thus had a 30-demerit record at this stage.

 - On July 16, 1976, the claimant waived investigation and thus accepted discipline in the form of 20 demerits far ab;;enteeism.

 - The claimant was thus of renewed 50-demerit status and the Carrier again sent hire notification of this fact together with the caution regarding the consequences of incurring 60 demerits. The claimant acknowledged receipt of the notification.

 - On November 16, 1976, having gone four months without incurring further demerits, the claimant wars given a 10-demerit credit. He thus had a 40-demerit record at this stage.

 - On January 13, 1977, the claimant waived investigation and thus accepted discipline in the form of 20 demerits for loafing on the job.

 - On this accumulation of 60 demerits, the claimant was removed from service and subsequently -- i.e.,, on due investigation of the facts surrounding his alleged violation of Rule 32-G -- dismissed.

 We have already disposed of the organization's contentions regarding the use of the System itself and the appearance of the phrase "subject to". We additionally reject the organization's allegations of harrassment and discrimination and its assertions which flow from the fact that one and same supervisor assessed most of the demerits. It may well be that the claimant in marry of the prior instances waived investigation and accepted the imposition of the demerits because he deemed it not worthwhile to go to the trouble of pursuing a challenge or because he thought that his own best interests were best served by foregoing a challenge. It may well be, in other words,, that some or all of the prior demerits might have been illfounded and might have been quashed had they been challenged. But it is, the fact of their acceptances by the claimant which must be taken to matter. The Organization is in effect seeking to reopen already-settled questions.
 Form 1 Award No. 7885
 Page 4 Docket No. 7596

Contrary to what the Carrier is asserting, however, we do not believe that the 20 demerits which prompted the Claimant's dismissal can be similarly disposed of. Here, what the claimant is saying simply has to be accepted -namely, that it was in ignorance of the consequence that he waived investigation and thereby accepted the 20 demerits as proper. To conclude otherwise is to conclude that the claimant knowingly accepted the discharge penalty and knowingly foreclosed an appeal from it. And, as we are not prepared to hold that the claimant alone is to blame for waiving investigation in ignorance of the consequence, we believe that elemental fairness and dueprocess considerations require the overturning of the dismissal.

 The 50-demerit-accumulation notification is in the form of a letter to the appropriate Superintendent by the affected employe bearing the signature of the employe and a witness. It reads as follows:

The waiving of an investigation in connection with the assessment of
 demerits is in the form of a memorandum signed by the affected employe and
 ,demerits by the appropriate Assistant Superintendent of Shops and the
 appropriate Superintendent of Shops. "Recommended by:" precedes the
 signature of the Assistant Superintendent of Shops, and "Approved:" precedes
 the signature of the Superintendent of Shops. The memorandum has spaces
 for the insertion of the particulars involved in the action (the name of the
 employe, and job held by him, the number of demerits, the nature and date of
 the infraction) and then has the following pre-typed sentence:

As shown, the claimant twice received the 50-demerit-accumulation notification. He did not receive a 40-demerit-accumulation notification. This was apparently in accordance with practice under the System, and there is otherwise no basis in the record for declaring the lack of a 40-demeritaccumulata.on notification wrongful. But the point that there was no 40 demerit-accumulation notification needs to be made because the Carrier in part relies on the following exchange (which occurred in the course of the dismissal investigation):


Form 1 Award No. 7885
 Page 5 Docket No. 7596

The exchange can b e read as indicating that the claimant received both 40-demerit-accumulation and 50-demerit-accumulation notifications -- in which event a case of different dimensions would be presented. The question in the exchange, however, can also be read as going to one or the other -- i.e., to receipt of either 40-demerit-accumulation notification or 50-demeritaccumulation notification. And on the facts of the record, the claimant's affirmative response must be so read -- for he did not in fact ever receive a 40-demerit-accumulation notification.

 The Carrier also relies on the fact that Rule 32-G incorporates the following:

We grant that the Carrier is thus correctly arguing that, if there was any question in the claimant's mind as to his demerit-accumulation status, the claimant had access to information eliminating such question. But we do not accept it as enough to overcome the defect which we see as inhering
 in the claimant's dismissal, -

 The defect which we see as inhering in the claimant's dismissal is that, plainly, the claimant signed the last waiver form without appreciation of the difference between signing that waiver form and signing the various prior ones and that Supervision did nothing to alert him to the consequence of signing the last waiver form. The silence is true both of the supervisor who signed the form in the "Recomended by" capacity and the supervisor who signed it in the "Approved" capacity. At least the latter of them, it seems to us, can be expected to hold concern not only for whether the assessed disciplinary action is proper but also for whether the employe who has signed the waiver form understands that he has reached the point of discharge and that, in signing the waiver form, he is in effect destroying his right to appeal the discharge penalty. And even if it is assumed that there is no such obligation at the supervisory level, the least that must be concluded, it sedans to us, is that the mechanj:aa3. fashion in which the waiver form was signed should have been discerned at the Carrier level and that, at the Carrier level, the claimant should have been ,permitted to rescind the waiver and thereby render himself capable of being substantively heard. It may well b e that 20 demerits, rather than the 10 demerits which wore assessed in all but one ,of the prior instances., represented the proper assessment with respect to the last infraction. But it is obviously conceivable that 20 demerits on the last occasion were excessive. Indeed, it is conceivable that the supervisor chose as many as 20 demerits in order to bring about the claimant's discharge.
 Form 1 Page 6

 Award No. 7885
 Docket No. 7596
 2-AT&SF-FO-'79

 Based on the foregoing circumstances, we believe the discipline was excessive. We direct that claimant be forthwith reinstated with restoration. of seniority rights but without back pay of any sort. Obviously raised, as the claimant returns to work, is the question of his demerit status. On this score, we have determined that the claimant should be given the benefit of the doubt that he v;ov1d have freed himself of demerits in the intervening two years. He is to be retvxned to work in clean-slate fashion.

 A W A R D

 Claim sustained to the extent given in the Findings.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board


Dated k Chicago, Tllinois, this 4th day of April, 1979.