(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employees PARTIES TO DISPUTE: (The Western Pacific Railroad Company

1. The Western Pacific Railroad Company violated Rule 45 of the Agreement extant when it failed and refused to allow Mr. A. F. Daggett due compensation for time held out of service in contravention of the clear and unambiguous terns thereof; and,

 2. The Western Pacific Railroad Company shall now be required to compensate Mr. A. F. Daggett for eleven days' at the pro-rata rate of his regular assignment of Interchange Clerk 24259.

 OPINION OF BOARD: Claimant on February 5, 1973 was working a regular assign
 ment as Yard Clerk with hours of 11:59 P.M. to 7:59 A.M.
 There were no provisions for a fixed lunch period but the applicable Rule 18
 provides that not less than twenty minutes shall be allowed to eat for regu
 lar operations requiring continuous hours. During the shift which was ad
 mittbdly light in work load, a power failure occurred from 1:10 A.M. to 2:05
 A.M. Claimant admitted that he left the office at about 1 A.M. and sat in
 his car during the blackout. At approximately 1:50 A.M. a fellow employee
 Mr. Brown, came out and asked Claimant to go to eat with him. Brown drove
 his car. The two men returned at about 3:15 A.M. The two men were asked by
 the Trainmaster, upon their return, where they had been. When told they had
 been to lunch (known to the Chief Clerk) he immediately took them out of
 service.

 An investigatory hearing was held on February 8, 1973 and on February 15th the two men were found guilty of unauthorized absence and were both dismissed from service. By letter dated February 21st, both men were accorded leniency by Carrier and returned to service, with Brown being made whole for lost pay but Claimant.not being reimbursed.

 Without regard to minor issues (such as the citation of a Rule in the dismissal letter which was not specified in the charge) the principal issues are whether or not Carrier appropriately withheld Claimant from service prior to the determin finding of guilt and whether the penalty assessed was discriminatory in view of the handling of Mr. Brown's case. It is noted that the charge, subject matter of the hearing, and the cismissal letter all referred to the absence


without authorization as the central issue in the disciplinary dispute; the citation of a rule for the first time after the hearing was inappropriate but in our judgment not a fatal flaw as it was completely gratuitious.

 The organization argues that Carrier violated Rule 45 of the Agreement which sets forth the disc part:

Petitioner avers that it was wholly unwarranted to hold Claimant out of i
 service for the infraction involved in this dispute. Petitioner also alleges
 that the case was not proven against defendent since the Chief Clerk knew that
 the two men had gone to eat and that the time for a meal period was somewhat
 flexible, based on operating needs. Finally, it is charged that the discipline
 assessed was discriminatory in view of the virtual complete exoneration (no
 loss of pay) for the other employee.

 First it is noted that Claimant had a reasonably poor work record insofar as attendance and tardiness is concerned (including taking time away from work) whereas Mr. Brown had a clean record.

 There is no question but that the two men took an excessive amount of time for "lunch" on the night in question. Even if twenty minutes was the minimum and somewhat flexible, the period of an hour and twenty minutes or more was unwarranted, even with the circumstance of the black out, which was over before the two men returned. Further there was a need for Claimant during the period of his absence. Therefore we conclude that there was substantial evidence that Cla charged. Given the guilt of Claimant, the difference in the ultimate penalties accorded the two men and certainly does not constitute an abuse of discretion by Carrier.

 The question of the suspension of Claimant prior to the hearing and assessment of penalty is another matter. In examining the alleged infraction at the time of the Trainmaster's action, there is no indication that the offense could be construed
on the safety of the public, other employees or himself. For this reason we conclude that Claimant should not have been held out of service prior to the assessment of discipline.


FINDINGS: The Third Division of the Adjustment Board, upon the whole



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



Claimant shall be made whole (at his regular pro-rata rate) for, losses sustained from February 5, 1973 through February 14th, 1973; the remainder of the Claim is denied.


AT17EST: ~`~
        Executive Secretary


Dated at Chicago, Illinois, this 16th day ofJanuary 1976.