siou is committed to the rule that it will not interfere with disciplinary measures unless it appears the carrier acted in bad faith, arbitrarily, capriciously or upon a fundamentally wrong basis". Award 1632. In Award 1310, this Board committed itself as follows:

"We think demotion was a proper method of discipline when the offense was serious enough that the Carrier could not be considered arbitrary if it had decided a dismissal, and the employe accepts the lesser position even though under protest. It may be considered as a lesser included discipline embraced in dismissal. The employe could have refused to accept the demotion which would haver esulted in what would have been equivalent of a dismissal.

"While, by accepting the demoted position, he does not waive his right of appeal from discipline enforced, it must be treated as if he were appealing from a decree dismissing him from service. If a dismissal could not in this case be considers unreasonable, certainly a lesser discipline dictated by consideration of leniency cannot be so considered * * "'

Thus, it is apparent that demotion of an employe by a carrier as a measure of discipline has been approved. In the instant case, the automobile in question had gone into the custody of the Carrier by virtue of the Bill of Lading. Soar had no authority from the Carrier to use it and by using it, he was guilty of an infraction of the rules of the Carrier. By his conduct, in the event of accident or by some other means, had damage to others accrued, there would be a legal question as to the liability of the Carrier. We find by a search of the record some mitigating circumstances.

A Mr. Bakewell and Mr. Lawton, bearing some family connections, brought the automobile to the freight depot to ship it back to the owner, Mr. Orthwein, also connected with the Bakewell family in some manner. Mr. Orthwein had loaned Bakewell the car to use on a trip. Upon arriving at the depot, they met Soar; he inspected the car, made notations of record with reference to its shipment. In a conversation Lawton told Soar to take the car home, take care of it and keep it there, rather than have the car stand out unused on the ramp. Bakewell, who was shipping the car, assented and agreed to Lawton's idea. Soar did take the car and used it, parked it in a parking lot on occasions. His use of the car was not extensive and it was not damaged or abused. It is true that Soar did not have the owner's consent.

Apparently, Soar felt that if he took the car under such circumstances, it would be all right. He readily admitted his error at the investigation. Assuming the mistake he made was an honest one, he still would be entitled to be disciplined. We conclude the Carrier was well within its prerogative by applying demotion as a means of discipline; having so determined, the claim for pay made by Soar must be denied. We further believe Soar should not be restored to his former position as Freight Warehouse Foreman.

We are convinced that under the circumstances and from a review of the record; that permanent disqualification of Soar, forever in the future, utilizing his seniority right,% to attempt promotion, is an abuse of discretion on the Carrier's part and is harsh and severe. See Award 913.

For the reasons stated herein, the discipline meted out by the Carrier should be modified to conform to the Opinion.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That the discipline should be modified in accordance with the Opinion.

AWARD