(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express 6 Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

1) Carrier violated the Clerks' Rules Agreement when it failed to notify employe G. R. Schmidt in waiting of the precise charge and/or charges being made.

 2) Carrier's action in dismissing G. R. Schmidt from service was arbitrary and unjust, and the penalty assessed was harsh, excessive and out of proportion for mishandling of way bills on September 22, 1971.

 3) Carrier shall now be required to reinstate employe G. R. Schmidt on his Train Clerk Position in Seniority District No. 30 with all rights unimpaired and compensate h service.

 OPINION OF BOARD: This is a discipline case in which claimant has already
 been restored to service. He was dismissed on October 15,
 1971 and restored to service on February 10, 1972, without pay for time lost.
 Thus, the sole issue is whether the original discipline should be set aside
 so as to allow claimant to recover for time lost.

 The Employees attack the discipline on the merits, but we must first consider the Carrier's contention that the claim has been settled and that, therefore, there is nothing for the Board to consider. The Carrier's settlement defense is based on to General Chairman, H. C. Hopper, copy to claimant, reads as follows:





Carrier characterizes the foregoing as an offer to reinstate claimant without back pay, which of return to work.

        "...since no agreement was reached by the organization for acceptance of the Carrier's decision to reinstate employe Schmidt, unless he so notifies me that he is agreeable to the terms outlined in your letter, I am considering his return to service an elimination of any further accumulation of payment for time lost, but it will be my intent to progress the claim for time lost up to, but not including February 7, 1972. (Underline added)


The Employees also emphasize in their submission that no request for leniency was made and that, contrary to practice on this property, the Carrier did not obtain claimant's written release of his wage claim.

 From our study of the two texts quoted above, along with the entire record, we conclude that cla of Carrier's offer to reinstate him without back pay. In reaching this conclusion we have closely studied the weaknesses in Carrier's settlement defense, especially its failure to ob release is a matter of evidence and its non-existence is not sufficient to override the other facts in this case.

 Carrier's February 7, 1972 letter gave clear notice that Carrier's reinstatement was on a leniency basis and that the exclusion of back pay was one of the express terms of the reinstatement. The claimant's response to the lettet was to return to work at the time and place designated by Carrier. The General Chairman's response was to write Carrier a letter in which he first recognized that "terms" were set forth in Carrier's letter (see underlined portion of General Chairman's Februa terms. In these circumstances we think that claimant's return to work is the decisive fact. He did so without any stated reservation of his wage claim and the record is barren of any evidence that he had any intent other than to accept leniency reinstatement on the terms stated by Carrier. Further, the claimant's failure to give positive notice to the General Chairman of his, claimant's, assent to Carrier's terms does not constitute evidence of a reservation of his wage clai claimant's conduct is the decisive factor and that such conduct clearly and unequivocally evidenced claimant's acceptance of Carrier's terms. We shall dismiss the claim.
                    Award Number 19982 Page 3

                    Docket Number CL-20084


        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 claim is dismissed as per Opinion.


                      A W A R D


        Claim dismissed.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


        ATTEST: xecutive Secretary


        Dated at Chicago, Illinois, this 12th day of October 1973.