3. Absent without proper authority since being given a release to return to service by Carrier's doctor on July 16, 1958.

4. Insubordination in failing to report back to work after agreeing to do so in Assistant Superintendent Parks' office on July 29, 1958.

An examination of the record establishes that the fourth charge is without foundation. There is no evidence of insubordination, the only claim in that regard being that Claimant did not return to work at a designated time although he had agreed to do so and been cleared by the Carrier's doctor, but instead notified the secretary of a subordinate official rather than the Assistant Superintendent, with whom he had been dealing in the matter, that he had consulted his own doctor who advised him not to return to work at the time. This evidence does not constitute insubordination and it may be noted that the Claimant had every right to consult his own doctor in the matter and not to rely exclusively on the Carrier doctor's diagnosis. Accordingly, the fourth charge does not provide a basis for Claimant's dismissal.

Regarding the first of the four charges listed above, it is noted that while Claimant did falsely indicate in writing on a company employment form that he was over 21 years of age when he was first employed, it affirmatively appears that he corrected it in a supplementary written personnel form over one year prior to the date the charges in question were filed against Claimant. We do not consider this evidence of sufficient force to justify discharge.

Similarly, with respect to the third charge, we find that while there is some evidence of absenteeism in the record, it is not so flagrant in nature as to constitute a valid basis for the dismissal penalty, in the absence of other rule infractions.

However, the second charge, that alleging that Claimant engaged in other business, is more serious. Claimant was employed in his family's rug cleaning business, although Rule 27 of the Carrier's "General Rules" states:

"Employes must not engage in outside employment or business without permission of the proper authority."

While this rule was unilaterally adopted and indeed was vigorously objected to by the Petitioner's General Chairman, we do not find it unreasonable, extraordinary or improper. See Award 6277. It is to be noted that the record clearly shows that Claimant's outside employment activity was not confined to a mere financial interest. The undisputed testimony in this case is that Claimant, during at least part of 1958 and a substantial period prior thereto, was actively engaged in actual physical work with the rug company. Despite this interest and manual activity, he did not obtain the Carrier's consent to engage in the rug business. The mere fact that some of the supervisory employes were aware of Claimant's interest is not the equivalent of consent, and consent can not be implied from such knowledge.

Apparently, Claimant never received any prior warning regarding his infraction of Rule 27. While that fact would lead this Referee to believe that the dismissal punishment is more severe than he considers appropriate, it can not validly be said to be arbitrary, capricious and unsupported by the record even if based solely on the second and third charges. Accordingly, in view of the broad latitude given Carriers by this Board in the matter of

That the parties waived hearing on this dispute;

That the Agreement was not violated.

AWARD