Irving T. Bergman, Referee


            (Brotherhood of Railway, Airline and Steam( ship Clerks, Freight Wndlerss Express ( and Station Employes PARTIES TO DISPUTE: (George P. Baker, Richard C. Bond, and Jervis ( Langdon, Jr., Trustees of the Property of ( Penn Central Transportation Company, Debtor


                        STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7270) that:


            (a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A-1, when it assessed disci.. pline of 15 days record suspension on S. P. Greglay, Car Control Clerk, River Rouge Yard, Detroit, Michigan, Detroit Division, Northern Region.


            (b) Claimant S. P. Gregley's record be cleared of the charges brought against him on January 11, 1972.


            OPINION OF BOARD: The Carrier assessed a 15 day record suspension

            for participation in an illegal strike. This was

            based upon the testimony of two Carrier supervisory employes. One

            testified that he did not see the claimant when he passed the picket

            line at 6:50 A.M., the second testified that he "believed" he saw the

            claimant at that time. Both testified that they saw claimant at 7:50

            A.M. when they returned to the picket area. Both witnesses testified

            that they did not see the claimant carry a picket sign or hand out

            literature although others carried picket signs. One of the witnesses

            testified that he spoke to claimant but only passed the time of day.


            The Organization has objected to the notice of hearing given to claimant in that it did not specifically state the purpose of the hearing. Objection has also been made to the determination after hearing being made by an officer wh thereby could not pass judgment on the conflicting testimony.


            The claimant testified that he artived at 7:25 A.M. for his 7:30 A.M. assignment; he saw the pickets, was informed that it was a legal strike and remained in the area of the picketing drinking coffee until the pickets were remove was there at 6:50 A.M., until 7:50 A.M.


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                          Award Number 20141 page 2

                          Docket Number CL-20152


            The notice of hearing included as its purpose: "-- in connection with your alleged participation in an unauthorized work stoppage from approximately 6:00 A.M. to approximately 8:20 A.M. at which time you were observed walking a picket line--at approximately 7:55 A.M. -- " At the hearin was, "properly notified as to the purpose of this investigation." and that, "he was ready to proceed with this investigation." We find that this was adequate notice and that the claimant was prepared to proceed with his representa


            The Carrier has argued that the Organization did not raise on the property the objection that the determination was-made by an officer who was not present at the hearing. This was not denied by the Organization. We shall objection; see Third Division Award 16348.


            The charge against the claimant is that he allegedly participated in a strike because he was observed walking a picket line at approximately 7:55 A.M. This would require proof that he took an active part in the picketing. There is no testimony as to the claimant's actions between 6:00 A.M., when the strike started, and 7:55 A.M. nor is there testimony as to his actions from 7:55 A.M. to 8:20 A.M. when the strike ended. Apparently the only reason the claimant was at the scene of the picketing was because he was required to be there for his assignment scheduled to start at 7:30 A.M. There is no evidence that when the Carrier's supervisor "passed the time of day" with him, he was informed that the strike was illegal or that he was instructed or directed to leave the picket area. The inference asserted by the Carrier that claimant was picketing because he.believed the strike to be a legal one evidence of picketing supported by the testimony of witnesses.


            In second Division Award 4494 on page 13, a lengthy discussion and citation of authorities suppo claimant reported for work and saw a picket line he would not be expected, as a union member, to cro alternative was to remain at the picketing site or to leave. The fact that he chose to remain and be available to work 2f the picket line was removed, is not evidence of participation.


            A series of Awards submitted for our consideration include facts which demonstrated that the claimants in those cases incited the work stoppage or actively picketed. They are not applicable to this case.


                  The Carrier has failed to meet the required burden of proof.


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                Award Number 20141 Page 3

              Docket Number CL-20152


          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 Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
        The Agreement was violated.


                  A W A R D


          Claim sustained.


                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


            ATTEST: ~Execu~ tive Secret


            Dated at Chicago, Illinois, this 15th day of February 1974.


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