(Brotherhood of Railway, Airline and Steamship Clerks
 ( Freight Handlers, Express and Station Employes
 PARTIES TO DISPUTE:
 (Chicago and North Western Transportation Company

1. Carrier violated the terms of the Agreement effective May 15, 1972, particularly Rule 21, when under date of September 12, 1973, it dismissed from service Mr. D. R. Tickal, Yard Clerk, )boon City, Iowa, and;

 2. Carrier shell be required to reinstate Mr. D. R. Tickal with all rights unimpaired, and compensate him for all time lost, or, compensate him for all time lost starting with a reasonable date subsequent to his dismissal, in accordance wit parties concerned with the incident in question.

 OPINION OF BOARD: Claimant D. R. Tickal entered carrier's service in Decem-
 I bar 1962 and at the time this wetter arose was employed as Yard Clark at Mason City, Iowa. The facts out of which this claim arose are not contested and may be summarized as follows:







4) Carrier security staff began an investigation of grain sales in the Mason City area in Auguat 1973 and determined that Claimant and Benson had made several auspicious sales over the years. When confronted with this information both employes admitted taking and selling the spillage and sveepage from grain cars.

 5) In September 1973 both employes were brought up on identical charges of "unauthorized removal of grain from equipment Following separate hearings at which they were represented both employes were found guilty and, by identical Notices of Discipline dated September 12, 1973, both were dismissed from service.

 6) The Organization undertook a consolidated appeal of the Benson and Tickal dismissals in a letter dated October 8, 1973 and reading in pertinent part as follows:



















By letter dated March 9, 1974 the Organization again appealed to the Director of Labor Relations. The record contains no specific disposition of this particular a Chairman dated October 10, 1974, adverting to the original appeal letter of the Organization, the Director of Labor Relations stated as follows:
`" _ Mason City, Iowa, on a leniency basis, last discussed







                Docket Number CL-21452


The record shows that Benson and two other employes made restitution to Carrier and were re corned to service without back pay. Tickal has not been returned to service and since September 1973 has worked at various times for employers other than Carrier.

 The position of the Organization on appeal to this Board is succinctly set forth in its Ex Parts Sutmission as follows:

        "The issue at bar in this dispute is whether the discipline assessed by carrier in this case was capricious, in view of the fact Claimant was actually unaware that he was acting in a manner unsatis carrier. Further, whether the discipline assessed was excessive, if found guilty as charged, in view of all the facts and circumstances involved in this case; such as Claimant's honest and cooperative attitude toward the charge and the fact all three other employee have been reinstated with all rights unimpaired.


        "It is the position of the Employes that carrier violated the terms of the Agreement effective May 15, 1972, in spirit and with contempt, particularly Rule 21, when it dismissed Claimant from service for his part in the incidents which..:. gave cause for carrier's investigation, and action which _.- ..

        - has now been proven to be discriminatory due to the reinstatement of the other involved employ


Carrier resisted this particular claim on the property and in its Ex Parts Submission on several grounds, to wit: 1) Any claim for wage compensation is untimely and not properly before us since it was not filed within 60 days of the dismissal per Rule 35; 2) The more severe discipline of Tickal is warranted an involved over a longer period and to a greater extent than the others, (b) "It is believed that the other employes became involved through the investigation of Mr. Tickal." and (c) Those employes who were dismissed and subsequently reinstated in fact made restitution to the Company but Tickal to date actually has not done so, bet merely offered to do so.
                  Award Number 21240 page 5

                  Docket Number CL-21452


Accordingly, Carrier urges that the Claim be denied in toto or alterna, tively that no monetary damages be permitted to run in Claimant's favor.

 Reduced to its essence, the question in this case is whether Carrier had a reasonable basis for singling out Claimant for substantially greater discipline than t viewing the case we sweep away a number of procedural questions which might have been presented on this record. We do so only after carefully analyzing the record and determining that such troublesome questions as which claim Carrier dealt with on October 10, 1974, and, whether a true leniency situation with attendant restrictions on our appellate role is presented herein are not adequately joined or were belatedly raised. With respect to the Carrier's Time Limit defense of part 2 of this claim we find that it is well taken with respect to so much of the claim as seeks compensation for all time lost. Such claim was raised belatedly on January 3, 1974 in an appeal which amounted to nothing more than a more specific reiteration of the Organization's earlier appeal for reduction in the penalty from dis the only issues ripe for our review are whether, in all the circumstances, Carrier acted unreasonabl what should be the appropriate remedy.

 There is no doubt that Claimant vas afforded a fair investigation or that the record supports a conc do not condone his side-line business in Carrier's spillage nor do we subscribe to the theory that either the contents of cars or spire from cars belongs to anyone merely for the taking. On the other hand, we cannot close our eyes to the fact that several other employee besides Claimant were engaged in a and hauling it avay to grain elevators. Over a period of three years the record shows that Claimant and his supervisor alone sacked and hauled away over 60 tons of spilled grain in assorted small lots during their off duty hours. It is true, an Carrier points out that the employes here did not have permission to do what they did and should have known better than to take the grain without permission. of Award 20771. Hut in the face of such persistent and frequent removal of spillage it is difficult in this case not to find Carrier condonation or negligence in permitting such an extens
Turning to what we view as the crux of the case, the disproportionate discipline of Claimant, we are offenders should be punished the same, absent some good reason for discrimination, e.sz.,poor culpability. Thus, failure to apply and enforce the rules with reasonable uniformity for all employe may find Carrier imposition of discipline unreasoable, arbitrary or
                  Award per. 21240 Page 6

                  Docket :dumber CL-21452


capricious. See Award 8431 (Daugherty). As we read the precedents the
 burden in such cases is upon Carrier Where the Organization, as here,
 makes a prima facie showing that co-actors have been disciplined with
 substantially different penalties. Carrier contends that Claimant was
 the instigator but there is not a shred of evidence to support this
 Dickens-like, theory. Claimant's supervisor was no Oliver Twist and
 Claimant Was no F'agia leading the others to filch for his gain. Rather
 the record shows beyond doubt that each was acting as an independent en
 trepreneur and Benson testified he was not sure whether he enlisted -
 Claimant in their single joint venture or vice versa. Nor do we find
 Carrier's distinctions regarding restitution to be persuasive. Benson
 actually made restitution and Carrier accepted it and returned him to
 service. Claimant tendered restitution several times (twice at his
 hearing on September 10,1975) but Carrier refused to accept it and
 dismissed him. On the other side of the comparative process, Claimant
 had ton years of service without discipline as a subordinate Yard Clerk.
 Benson had eight years of service and was a supervisor. There is no
 ready explanation wkly the supervisor was punished less severly for iden
 tical offenses than was the underling. ..

 In all of the circumstances we are persuaded that the dismissal of Claimant was arbitrary and unreas should be modified to conform to the discipline assessed his colleague. We shall sustain the claim to that extent. Thus, conditioned upon his restitution to Carrier of the sum of $3213.53, Cult shall be offered reinstatement to service effective October 10, 1974 with no payment for time lost from September 72, 1973 to October 10, 1974, however with seniority, vacation rights and insurance unimpaired, provided he can pass such examinat instruction. If Claimant is reinstated under such conditions he also shall be compensated for time lost since October 10, 1974 until such reinstatement, less any amount earned in other employment during that time.

        FMMS: The Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employee 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 Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.

                    Award Number 21240 Page 7

                  Docket Number CL-21452

                  A W A A D


        Claim sustained to the extent indicated is the Opinion.

        NATICNAL RanxoAD ADJUSTNMT BOARD

ATTEST: ABy Order of Third Division

        Executive Secretary


Dated at Chicago, Illinois, this 28th day of September 1976.