(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Pacific Fruit Express Company

(a) The Pacific Fruit Express Company violated the current Clerks' Agreement between the parties when on August 26, 1971 it dismissed Mr. J. E. Zapata from service following investigation at which the charges brought against him were not proved; and,

 (b) The Pacific Fruit Express Company shall now be required to reinstate Mr. J. E. Zapata to ser him for all wages lost until restored to service with all rights unimpaired; to make premium payments to the Hospital Association as well as the Travelers Insurance Company under Policy GA-23000 extant until he is returned to service with all rights unimpaired, and to expunge his personal record respecting the charges.

Claimant was discharged, after hearings, for violation of Rules H and K of Carrier's rules.











The testimony, at the hearing, showed that on July 12, 1971, while employed, claimant sustained an injury. He reported it, and was examined by a doctor, who took X-Rays. After the examination, claimant returned to work, but was unable to finish the day and left two hours ahead of time, after notifying his foreman.

 Although, there was a great deal of testimony at the hearings and numerous objections, the above facts emerged clearly. There was no substantial testimony supporting the charge of violation of Rule K. Under the established precedents of the Board, the charge was not proven.

 The conclusion reached by G. W. Flyn, in his letter of discharge to the claimant, dated August 26, 1971, that the other trips to doctors "were clearly with the purpose of setting up an umbrella over _(the_1 unauthorized absence" is not supported by any evidence, if not actually contrary to it.-

 As to the charge of violation of Rule H, the situation is different. The record contains substantial uncontroverted evidence, that claimant worked only on week ends and refused jobs on weekdays, and that he was actually working on other jobs in violation of the Rule. Claimant did not refute the testimon·but only obj not court proceedings, where strict adherence to rules of evidence is required. Claimant was, in the notice sent to him, advised that he is charged with having outside employment in violation of Rule H. It was his right and obligation to deny it, if the charge was not true. This he failed to do. He could easily have brought his wife to deny the testimony of the Carrier's witnesses. This, too, he failed to do. The testimony, thus, was substantial and uncontradicted. Under the numerous precedents of the Board, it can not upset a decision based on substantial evidence.

 Nor can the Board substitute its judgment for that of the Carrier in imposing discipline when a finding of violation is based on substantial evidence, where it is not sh
Nor is Rule H, itself, unreasonable, in view of the fact that it affected the attendance record of employees. No evidence was introduced to show that the Rule was applicable to permanent employees only.

 I
                  Award Number 19933 Page 3

                Docket Number CL-19874


        FINDIIGS: The Third Division of the Adjustment Board, upon the vhole 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

 The Carrier did not violate the Agreement by discharging the Claimant for violation of Rule He
                      A W A R D


        The claim is dismissed.


                            NATIONAL RAILROAD ADJUSTMENT BVAED

                            By Order of Third Division


ATTEST: ~,&, iw
 Executive Secretary

 Dated at Chicago, Illinois, this 7th day of September 1973.
              NATIONAL RAILROAD ADJUSTMENT BOARD

              Award Number 19933

              THIRD DIVISION Docket Number CL-19874


                Benjamin Rubenstein, Referee


(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Pacific Fruit Express Company

              STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7199) that:


(a) The Pacific Fruit Express Company violated the current Clerks' Agreement between the parties when on August 26, 1971 it dismissed Mr. J. E. Zapata from service following investigation at which the charges brought against him were not proved; and,

 (b) The Pacific Fruit Express Company shall now be required to reinstate Mr. J. E. Zapata to ser him for all wages lost until restored to service with all rights unimpaired; to make premium payments to the Hospital Association as well as the Travelers Insurance Company under Policy GA-23000 extant until he is returned to service with all rights unimpaired, and to expunge his personal record respecting the charges.

              OPINION OF BOARD: This claim is for reinstatement of claimant with back pay and all rights unimpaired.


Claimant was discharged, after hearings, for violation of Rules H and K of Carrier's rules.

        Rule H, reads:


        "Engaging in other work or business is not permitted. Exceptions to this rule may in some of head of department".


        Rule K, provides:


        "Those wishing to absent themselves from duty must first obtain approval of their supervisors. I report for duty, he must immediately inform his supervisor and report the circumstances; failure to


        We shall deal with Rule K, first.

                    Award Number 19933 Page 2

                    Docket Number CL-19874


The testimony, at the hearing, showed that on July 12, 1971, while employed, claimant sustained an injury. He reported it, and was examined by a doctor, who took X-Rays. After the examination, claimant returned to work, but was unable to finish the day and left two hours ahead of time, after notifying his foreman.

 Although, there was a great deal of testimony at the hearings and numerous objections, the above facts emerged clearly. There was no substantial testimony supporting the charge of violation of Rule K. Under the established precedents of the Board, the charge was not proven.

 The conclusion reached by G. W. Flyn, in his letter of discharge to the claimant, dated August 26, 1971, that the other trips_to doctors "were clearly with the purpose of setting up an umbrella over _/the/ unauthorized absence" is not supported by any evidence, if not actually contrary to it.-

 As to the charge of violation of Rule H, the situation is different. The record contains substantial uncontroverted evidence, that claimant worked only on week ends and refused jobs on weekdays, and that he was actually working on other jobs in violation of the Rule. Claimant did not refute the testimon·but only objecte not court proceedings, where strict adherence to rules of evidence is required. Claimant was, in the notice sent to him, advised that he is charged with having outside employment in violation of Rule H. It was his right and obligation to deny it, if the charge was not true. This he failed to do. He could easily have brought his wife to deny the testimony of the Carrier's witnesses. This, too, he failed to do. The testimony, thus, was substantial and uncontradicted. Under the numerous precedents of the Board, it can not upset a decision based on substantial evidence.

 Nor can the Board substitute its judgment for that of the Carrier in imposing discipline when a finding of violation is based on substantial evidence, where it is not sh
Nor is Rule H, itself, unreasonable, in view of the fact that it affected the attendance record of employees. No evidence was introduced to show that the Rule was applicable to permanent employees only.

 I
                  Award Number 19933 Page 3

                Docket Number CL-19874


        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

 The Carrier did not violate the Agreement by discharging the Claimant for violation of Rule H.
                      A W A R D


        The claim is dismissed.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: Awl , ~
 Executive Secretary

 Dated at Chicago, Illinois, this 7th day of September 1973.

 I