(Brotherhood of Railway, Airline and Steamship Clerks,
 (Freight Handlers, Express and Station Employes
 PARTIES TO DISPUTE:
 (Penn Central Transportation Company

(a) The Carrier violated the Rules Agreement, effective May 1, 1942, except as amended, particularly Rules 6-A-1 to 7-A-1, inclusive, when George Schwindinger, Ticket Clerk, Pennsylvania Station, Newark, New Jersey, was required to reimburse the Carrier $902.50, which amount of money was stolen from his cash drawer on October 14, 1966.

 (b) The Carrier be required to return this money, $902.50, plus
 interest at 6% from date paid to Carrier to date of its return to the Claimant.
 (Docket 2420)

 OPINION OF BOARD: Claimant, a Ticket Clerk at Newark, New Jersey, was relieved
 of $902.50 from his cash drawer, by a person or persons
 unknown, on October 14, 1966. His claim asks that he be relieved of the burden
 on repaying that amount to Carrier. The basic facts are not in dispute.

 On the date in question claimant left his position for a coffee break. He left his drawer closed with the key in the drawer, unlocked. The work area is restricted, and only other clerks, and persons on proper business are admitted. On his return, claimant, after immediately observing his loos, called his supervisor.

 An investigation was held on October 27, 1966. Carrier issued a notice of discipline on December 29, 1966, advising claimant that he would receive seren days suspension for his culpability in the loss of the money. That decision was appealed, by a letter received by Carrier on January 9, 1967. Following a discussion, held on January 16, 1967, claimant was advised that the seven day suspension was reduced to a reprimand because of claimant's past record and length of service. On January 23, 1967, the Division Chairman listed a claim for discussion at the regular monthly discussion with the Superintendent of Personnel, the most salient section(for our purposes here) of which is as follows:

 :u


                    "2. That claimant George Schwindinger, Ticket Clerk at the Newark, New Jersey Passenger Station, be relieved of movies stolen, or misplaced from his working draw, at the window of this said Passenger Station, Newark, New Jersey on October 14, 1966."


          The request to be relieved of the obligation to repay Carrier for the loss was based on an agreement, which Carrier says was "voluntary", which Claimant made and began discharging on December 5, 1966. Claimant's agreement to repay Carrier was m disciplinary decision following the investigation. It can hardly be considered voluntary. It is noteworthy that the record clearly shows that it was not referred to in Carrier's notice of discipline. Yet the agreement to reimburse Carrier was an integral part of the entire problem.


          Carrier took the position that the Claim filed as New Yorks Clerks case 10/67 had not been handled in accordance with Rule 7-A-2, which reads:


                    "7-A-2 (Effective November 1, 1955) When it is considered that an injustice has been done with respect to any matter other than discipline, the employe affected or the 'duly accredited representative' as term is defined in this Agreement, on his behalf, may within ninety days present the case, is writing, to the employe's immediate Supervisor. If the decision of such Supervisor, which shall be in writing, is unsatisfactory, such decision may then be appealed by employe affected or by the said 'fully accredited representative' as that term is defined in this Ag on his behalf, to the Superintendent Personnel (in System General Office Departments, the officer in charge of the Department).

                    In the case of claims for compensation alleged to be due, the time periods specified in Rule 7-B-1 will be observed."


          Apparently claim numbered New York Clerks Case 33/67 was filed an February 13, 1967. That claim was handled on the property and is the claim which has been submitted to this Board. It seeks relief from Carrier's assessment of $902.50 from claimant's wages.


          Carrier begins its defense by asserting that claimant did not file tlain No. 33/67 in a timely manner because the shortage occurred on October

            /4, 1966 and the claim was not filed until February 13, 1967. The claim was filed well within the ninety day time limit. December 5, 1966 is the date ~arrier required claimant to begin repaying and limitations did not begin to run until that date.


..
                    Award Number 19573 Page 3

                    Docket Number CL-19447


Carrier next argues that the claim, as presented to the Board, has been materially changed from the claim as handled on the property. Of course, if this were the case it would result in dismissal of the claim. However the Board has held that where Carrier has not been misled, and the issue is "substantially the same issue as originally raised", the claim should not be dismissed. This view was expressed in Award No. 13229 as follows:

          ". . Though the first paragraph of the Statement of Claim presented to this Board is not couched in the identical language used in the claim originally presented to the Carrier on the property it raises s cannot, therefore, be seriously urged that the Carrier has been misled as to the issue or claim conf variance between the claim presented to this Board and the one presented to the Carrier on the property, this Board would not be justified in dismissing this claim; therefore, the request for a dismissal of this claim is denied. See Award 3256--Carter; Award 6656--Wyckoff."


The issue presented to the Board here is more than substantially the same. It is exactly the some. Claimant asks the Board to relieve him from rapaying the stolen money. That the handling on the property and the submission to the Board.

 The reason Carrier raises the question of change is not that claimant has changed the nature of his claim. It stems from the citation of Rules claimant alleges were violated in his submission to this Board and the lack of citation on the property. This, under some factual circumstances might be a material variance.. Under the facts of thin case it is not. Claimant was given notice of trial, a trial was held and he was disciplined. All is connection with the monetary loss at issue. However, as noted, that process did not result in the requirement that he repay the loss to Carrier. That requirement was established by Carrier outside of the disciplinary process. When claimant made his protest Carrier replied that he was making a claim under Rule 7-A-2, dealing with non disciplinary matters. The Organization argues here, and the record supports its assertion, that Carrier, not the Organization, injected Rule 7-A-2 into the controversy.

 What has occurred is that Carrier disciplined claimant by suspension, later reduced to reprimand, acting under Rule 6 of the Agreement. Acting outside the Agreement it required claimant to re-pay the stolen funds. Claimant amended and supplemented his claim to include the matter of repayment. He accepted the repr requirement of repayment, and correctly points out that this was a disciplinary measure taken without observing the requirements of Rule No. 6.
                              Award Number 19573 Page 4

                              Docket Number CL-19447


                  Carrier objects to this view of the case, citing an Award from

            another property to the effect that recoupment of stolen funds is not a dia·

            ciplinary measure and therefore not subject to the requirement of notice,

            hearing, and notice of discipline. However that may be on the property in

            question, there are several Awards on this property which reach a contrary

            conclusion. In rendering the Award on this property the Board was joined

            by the Referee who sat with the Board in rendering the Award relied upon by

            Carrier.


            There can be no doubt that the Awards on the property hold that a requirement that a shortage must be repaid is a matter of discipline. Awards so holding follow: No. 4295, No. 4296, No. 4325, No. 4665, where it was said:


                      " . It is the opinion of this Board that the failure of the Carrier to reimburse the Claimants for the shortages charged them can only be a matter of discipline for their alleged laxity or negligence, an the conduct of the Carrier violated Rules 6-A-I and 6-B-1 of the Agreement. If we were to agree with the Carrier that it should have the choice of deciding when shortages in Ticket Clerks' accounts were discipline matters, and when they were not, it wo effect vitiate the discipline rules in the Agreement."


            also No. 13575, as follows:


                      "Under the exceptional and unusal circumstances is this case, the action of the Carrier in requiring the employe to make reimbursement was tantamount to discipline. We therefore find that he should have been given a trial in accordance with the discipline rule of the Agreement. Parts (a) and (b) of the claim will be sustained. We are without authority, however, to grant the remedy requested in Part (c) of the claim."


            And, in No. 18239 the Board said:


                      "An investigation was held on October 16, 1968. After the hearing, he was found to have failed to follow explicit instructions to place all monies in the station safe and lock it whenever he is required to leave the station. As a discipline, Claimant was required to make restitution in the amount of $335.73."


..'~'S,YSw.y
                    Award Number 19573 Page 5

                    Docket Number CL-19447


Thus we cannot accept Carrier's argument that Claimant was not disciplined when he was required re-payment during the time he was waiting for the result of his trial. Claimant filed a timely protest against that action and has continued his protest to this Board. By failing to adhere to the rules for assessing discipline Carrier violated the Agreement. We will grant that part of the claim which asks that Carrier reimburse claimant in the amount of $902.50.

 Part (b) of the claim asks that Carrier pay interest on the amount due at the rate of 6%. Since that issue was not raised on the property the Board, under established principles, must reject it.

        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 violated.


                    A W A R D


        Claim is sustained to the extent indicated in the Opinion.


                NATIONAL RAILROAD ADJUSTMENT BOARD

                ° By Order of Third Division


ATTEST: eCA nA `,L
 Executive Secretary

        Dated at Chicago, Illinois, this 30th day of January 1973.