will be unable to be on the job this morning and will not be there until hear (sic) from me further at a later date." To this statement the Chief Dispatcher replied "all right". Claimant did not work her assignment that day.

Subsequently, Claimant was charged with failure to protect her assignment and, after an investigation, was dismissed from service on February 7, 1964.

There is no evidence of probative value to support the Carrier's finding that Claimant was guilty as charged. Her conduct, under the circumstances, was proper and constituted no violation of any contract rule. To dismiss her from service for failure to protect her assignment was manifestly unjust.

The Board has been urged to limit the damages here sought to the period beginning February 7, 1964 to June 29, 1964, the latter being the date of a letter from Carrier's General Superintendent-Chief Engineer, to the Claimant. The substance of that letter reads as follows:

"Since your discharge on February 7, 1964 and the hearings and appeals subsequently held, further consideration has been given the circumstances of your case and although we cannot condone your not having taken the proper steps to protect your assignment and you have made no request for leniency, it has been decided to give you another chance.

"With the understanding that any future failure to abide by the rules or the instructions of proper authority will not be tolerated, you will be re-employed without loss of service age as per Rule No. 17 (k) of the agreement provided you report for duty on the extra list to the dispatcher at Shops no later than July 9, 1964."

On July 6, the General Chairman representing the Claimant declined to Carrier's offer on grounds (a) that the conditions expressed therein were "inconsistent" with the claim for restoration of Claimant to her former position with pay for all time lost and (b) that the offer suggested a plea for leniency by the Claimant which, if accepted, would be an injustice to her and "irreparably damage" her case. The General Chairman, however, did offer to consider reinstatement of Claimant to her position and "let the matter of pay for time lost be decided by the Third Division, N.R.A.B. . . . .

To the communication, the General Superintendent replied on July 7, 1964, stating, among other things, that the Carrier's offer of June 29, "had no connection whatever with (the) claim . " and was "notice of my decision to give her another chance and re-employ her without loss of seniority as per Rule 17 (k) . ." He further advised that the "only conditions attached were that she abide by the rules . . . and instructions of proper authority and that she report for duty . . . no later than July 9, 1964."

On July 14, 1964, the General Chairman again declined to accept Carrier's offer on the same grounds set out in his letter of July 7 (supra).

From an analysis of the Carrier's offer and of certain other documentary evidence of record including a letter dated June 24, 1964, from Carrier's Acting Supervisor of Wages, where, among other things, the admission is made that in discussing Claimant's case at that juncture he "was talking about a subject the Organization has not broached, i.e., leniency . ." (Emphasis ours) the Board finds the position taken by the Organization was correct, and in the

interests of the Claimant. Her acceptance of the June 29 offer would have constituted a request for leniency and, consequently, an admission of guilt which, in turn, would have furnished the Carrier with an air-tight defense to the claim when later considered by this Board.

It is true that the Board has followed and applied the doctrine of mitigation of the damages sought where a Claimant is offered but refuses to accept reinstatement in a job comparable to the one lost through dismissal. (See Third Division Awards 1111, 5027, 5498, 12986; First Division Awards 12116 and 13206, Fourth Division Award 1123).

Here, however, the offered employment-extra work-was not comparable to the regular assignment held by the Claimant nor was there any agreement that only the claim for back pay would be progressed (as suggested by the General Chairman). We know of no authority which requires a Claimant, under the circumstances found here, to agree to what amounts to a constructive abandonment of a claim for monetary damages by pleading for leniency and thus admitting guilt.

In view of the foregoing, the claim will be sustained, less any amounts earned by Claimant during the period from February 7, 1964, to the date of her reinstatement.

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

That the Agreement was violated.

AWARD