"cc-Mr. D. J. O'Connell"

On the same day, he caused Druk's position to be Bulletined as a permanent vacancy for the stated reason that his services had been terminated under Rule 10-(c). It is contended on behalf of Druk that the action taken by the Bureau in dismissing Claimant from the service without investigation held pursuant to notice as required by Rule 20 was in violation of said Rule.

Rules 10-(c) and 20 provide as follows:

"(c) An employe absent on leave who engages in other employment will be considered out of service unless special arrangements shall have been made by agreement between the officer designated by the Management and the General Chairman."

"An employe who has been in the service more than sixty (60) days or whose application has been formally approved shall not be disciplined or dismissed without investigation. He may, however, be held out of service pending such investigation. The investigation shall be held within seven (7) days of the date when charged with the offense or held from service. An employe, charged with an offense, shall be furnished with a letter stating the precise charge at the time the charge is made. A decision will be rendered within seven (7) days after completion of investigation."

This Referee does not disagree with such contention. However, since Druk did request an investigation under Rule 20 he waived his right to object to the Bureau's unilateral action in terminating his services on December 29. Therefore, it is not necessary to pass upon that contention.

The procedure followed in this case with respect to developing the facts was somewhat unusual. Not only did Druk request the investigation which was proper so long as he wished to do so, but he acquiesced and took part in an exchange of letters between General Chairman Bell and the Bureau's General Manager, D. J. O'Connell, which though it limited the time element involved in this dispute to the period of Druk's leave of absence, it had the effect of extending the time for the ascertainment of facts which became a part of the record even after the investigation had been concluded. The investigation was held on January 21, 1960, twenty-three days after Druk's

original dismissal. During the intervening period the Bureau made a more thorough investigation of Druk's wrestling activities while he was on leave, thereby bringing to light new facts which, though disputed, were properly received in evidence at the January 21 hearing, in support of the Bureau's claim that Druk did receive either money or credit, or both, as compensation for his participation in wrestling matches while he was on leave of absence in December 1959.

The evidence is conflicting. We have studied it carefully and feel that no good purpose would be served in repeating it here.

The testimony of Mr. Druk, however, should be noted. The transcrip shows that he reviewed the Bureau's evidence piece by piece, and, contended that the charges against him had not been sufficiently proved. He did not testify, however, that he had not received pay for taking part in the wrestling matches.

Having carefully examined the testimony and other evidence in this case and the inferences which may be legitimately drawn therefrom, we have concluded that in view of the facts and particularly in view of the procedure followed by the parties, that the Bureau was justified in terminating Druk's services, and that its action in so doing should not be disturbed.

Our conclusions in this matter, particularly with respect to the propriety of the Bureau's action in terminating Claimant's service without investigation as provided in Rule 20 were based upon the particular facts of this case and particularly upon the procedure followed by the parties involved and should, therefore not be considered as a precedent for either the approval or the disapproval of such action in any case except the one at bar.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing:

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 this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Agreement was not violated.

AWARD