(Richard H. Heath PARTIES TO DISPUTE:

STATEMENT OF CLAIM: This is to serve notice as required by the Rules
 of Procedure of the National Railroad Adjustment Board of my intention to file an ex partee submission thirty days from the date of this notice covering an unadjusted dispute between me and the Erie Lackawanna Railway Company involving the question:

 Whether my discharge from employment by the Erie Lackawanna Railway Company was proper, it being my contention that the discharge was based on a conspiracy between the Erie Lackawanna Railway Company and the Brotherhood of Maintenance of Way Employees to terminate my employment and it being further contended that said discharge was void and of no effect because of the fact that the undersigned had been previously discharged from employment by the Erie Lackawanna Railway Company and for the further reason that the discharge was not justified by the evidence.

 OPINION OF BOARD: Claimant herein, a foreman, was charged with a
 violation of Rule 0-1 of the Rules of the operating Department for allegedly improperly reporting on and being paid for, time not actually worked, for November 19, 1971. Rule 0-1 states:

Following a hearing held on December 22, 1971, Claimant was found guilty by Carrier and discharged effective January 6, 1972. No contentions with respect to due process were raised and Carrier waived the various procedural deficiencies in the steps followed by Claimant in the appeal procedure.

 Claimant contended that the employer and the union had conspired to cause termination of his employm assistance from his Union representative at the hearing, that no consideration was given to his pers


payroll error, and finally that the entire matter was moot since the union had caused his prior discharge for non payment of dues.

 We note that Claimant specifically declined union representation at the hearing. The record of the h Claimant had improperly reported himself as working on November 19, 1971 and had accepted payment for that day; the same day his wife gave birth to a child. However, the record also indicates that he was responsible for making out payroll sheets at the end of the month as well as maintaining daily time records for his gang and himself. He also had just been disciplined for an identical offense committed in October 1971. With respect to the mootness argument, the facts are that Claimant was dismissed from service on December 28, 1971 for violation of the Union Shop Agreem 21, 1972.

 This Board's review of disciplinary action by a Carrier is restricted to first a determination of whether or not there was sufficient probative evidence adduce Carrier was arbitrary, capricious or discriminatory. In this dispute the record is clear that the finding of guilt was supported by uncontroverted evidence and that the




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








ATTEST
 Executive Secretary

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