(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Atchison, Topeka and Santa Fe Railway Company ( - Western Lines -

(1) The Carrier violated the Agreement, particularly, but not limited to Section 1 of Article V when, on April 24, 1972, it dismissed B. J. Lail, said dismiss abuse of discretion by inflicting this drastic and excessive penalty on charges not sustained by the record (System File 130-187-46).

 (2) The Carrier now reinstate B. J. Lail to his former position of B&B painter, with seniority, vacation and all other rights unimpaired and compensate him for wage loss beginning April 24, 1972 continuing forward to date he is restored to service.

 OPINION OF BOARD: Claimant was dismissed from the service of the Car
 rier subsequent to an investigation properly held
 under the terms of the agreement.

 The dismissal decision was appealed. Following a conference held with the General Manager, the f




        Mr. G. E. Tressler General Chairman, BOfMWE Room 201, 500 Main Newton, Kansas 67114


        Dear Sir:


        This letter will confirm understanding reached in our conference today regarding former Northern Division P&B Helper B. J. Lail.

          Award Number 20583 Page 2

          Docket Number MW-20654


"As I stated to you, this man's 'attendance record' is far from satisfactory. He failed to protect his job on many occasions and offered various excuses such as car breaking down, sickness of wife, brother in hospital, etc. Undoubtedly some of these excuses were legitimate, but many others were questionable and indicated that he really was not interested in working for the Railway Company or that he wanted only to work at his c which arrangement is not acceptable to the Railway Company. If we cannot depend on an employee we are better off without him.

 However, I am agreeable to reinstating him without pay with the distinct understanding that he will be expected in the future to protect his assignment copy of this letter Mr. Beauchamp will carry out this agreement. In addition to division officers emphasizing this understanding with Lail, I understood that you also will have a talk with him and emphasize that he will be expected to take care of his job in the future.

 I would appreciate your acknowledgment of this agree- ment, particularly the feature of your withdrawing claim for pay while he has been out of service.

                    Yours truly,


/s/ F. N. Stuppi cc: Mr. Beauchamp"

                  "April 5, 1972


Mr. F. N. Stuppi,
 General Manager
 A T & S F Railway
 Amarillo, Texas

 Dear Sir:

 This has reference to your letter March 31, 1972 regarding understanding reached in conference March 31, 1972 regarding reinstatement of Northern Division B &a B. J. Lail.

 ;:_I
                  Award Number 20583 Page 3

                  Docket Number MW-20654


        "This is to advise that it was mutually agreed that B. J. Lail would be reinstated with seniority rights unimpaired, without compensation for wage loss during the period he was out of service.


        During our conference I also stated that I would advise B. J. Lail that he will be expected to take care of his job in the future.


                              Yours very truly,


        /s/ G. E. Tressler

        General Chairman

        GET/db"


The General Chairman then sent the following letter to the Claimant.

                            "April 5, 1972


        Mr. B. J. Lail

        712-1/2 W. 14th

        Sulphur, Oklahoma


        Dear Sir and Brother:


        This has reference to claim in your behalf for reinstatement to your former position as B & Northern Division.


        Claim was discussed in conference March 31, 1972 and it was mutually agreed that you. would be reinstated to your former position with seniority rights unimpaired, without compensation for wage loss.


        I wish to take this opportunity to impress upon you the necessity of protecting your job in the future.


        I would be happy to discuss this case with you the first time that we have an opportunity to do so.


        With best wishes, I am,

        Fraternally yours,


        /s/ G. E. Tressler

        General Chairman

        GET:db"

                  Award Number 20583 Page 4

                  Docket Number MW-20654


The Carrier has refused to reinstate the Claimant on the grounds that he has not fulfilled the conditions of the agreement to reinstate set out in the letters above. On April 24, 1972 the General Manager informed the General C offer to reinstate in the letter quoted herein.

        "Referring to my letter of March 31, 1972, regarding conditional commitment made in conference t reinstate former Northern Division B&B Helper B. J. Lail without pay for time lost, also, your subsequent letter of April 5, 1972.


        As stated to you by Assistant General Manager J. R. Fitzgerald during recent telephone conversation, Mr. Lail contacted our Agent at Wynnewood, Oklahoma, on April 10, 1972 and made inquiry concerning his reinstatement. Mr. Lail was under the influence of intoxicants at the time and made several threats relative to returning to work and hurting his back in order to sue the railroad company and get even for having been discharged. In addition, we have made some further investigation concerning Mr. Lail and find that he still has a serious drinking problem.


        In view of the additional information developed in connection with Mr. Lail and the fact that he has not fulfilled the conditions under which we agreed to reinstate him, I am not agreeable to returning him to the service of this Company at this time. My offer of reinstatement is accordingly withdrawn In view of the circumstances and the pending claim in his behalf is respectfully declined for the reasons outlined herein and in my former decision of August 23, 1971."


The Organization has based this claim an the grounds that the dismissal claim was adjusted on the property by the agreement to reinstate, which agreement was breached by the Carrier. The Carrier has responded that the Claimant was not an employee at the time of the filing of-this claim and therefore is not entitled to proceed against the Carrier under the terms of the Maintenance of Way agrement.

 The letter of the General Manager dated March 31, 1972, makes it abundantly clear that a negotiated agreement was reached which adjusted the dismissal claim on the property. The final paragraph of said letter asking for an and for withdrawal of the claim for wages along with the General
                  Award Number 20583 Page 5

                  Docket Number MW-20654


Chairman's April 5th letter acknowledging the agreement including the withdrawal of the claim for wage loss constitute an offer and acceptance which underpin an enforceable agreement.

 The Carrier has alleged that said agreement contains certain conditions precedent which have not been met by the Claimant. We do not agree. The Carrier has not shown that the Claimant failed to meet an expressed or implied obligation placed upon him by the terms of the Agreement. The Carrier agreed to the reinstatement of the Claimant without liability for wage loss with seniority rights unimpaired.

 After that Agreement was made the Carrier had every right to discipline the Claimant for his subsequent conduct. It should have been done, however, under the discipline provisions of the Agreement.

 We will sustain the claim. The proper measure for monetary damages is the same as that set out in the Agreement in Article V section 6 for an employe unjustly dismissed.

          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 wit 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 sustained.


                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


ATTEST:
          ecutive Secretary


Dated at Chicago, Illinois, this 17th day of January 1975.