( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, GL-

1. The Carrier violated the rules of the current Clerks' Agreement including, but not limited to Rul Rigsby from its services and then did not sustain its charges as contained in Superintendent B. M. Flohr's letter of November 6, 1974, in the formal investigation held commencing at 9:00 a.m., Monday, November 18, 1974, and Carrier further violated those same rules when Mr. Rigsby did not receive written notice of the decision of the investigation within ten (10) days following the conclusion of'the investigation.

 2. Cariier shall compensate Mr. Rigsby for all time lost, including any overtime he could have earne January 16, 1975, to include interest at the rate of 10% per annum on all monies due him,

 3. The Southern Pacific Transportation Company, Texas and Louisiana Lines be required to clear Mr. Rigsby's service record of the charges and discipline assessed in regards to the case at hand.

 OPINION OF BOARD: Claimant was dismissed from Carrier's service on
 November 6, 1974, for his "responsibility in being quarrelsome and vicious; for using boisterous, profane, and vulgar language; and for entering into altercation, scuffling, and wrestling, while on duty as a clerk, East Yard Office, 3:59 P.M. to 11:59 -P.M., November 4, 1974."

 In conference on January 16, 1975, Carrier agreed, in order to limit its liability, that Claimant would be reinstated to the service of Carrier with seniority and other employe rights unimpaired effective Friday, January 17, 1975. This agreement was made without prejudice to the position of either party regarding payment for time lost and discipline assessed.
is whether there was a violation of the last sentence of Paragraph 4 in
 Rule 25, which states that: "Written notice of decision of the investiga
 tion will be given the employe within ten days following the conclusion
 of the investigation."


                  Docket Number CL-21292


The second issue is whether there is substantial evidence in the record to support Carrier's decision.

 Turning to the procedural issue first, the Board notes that the parties disagree on the meaning of the phrase "will be given the employe within ten days."

 Webster's Third New International Dictionary '(unabridged edition) defines "give" as "to put into the possession of another for his use," and "to execute and deliver."

 Applying this definition to the last sentence in Paragraph 4 of Rule 25, the clear meaning of that language is that the employe is to have the written notice of the decision of the investigation put into his possession within ten days following the conclusion of the investigation.

 In other words, the written decision is not only to be rendered or executed within ten days, but also delivered

 The record shows in the instant case that Claimant did not receive written notice of Carrier's decision until 14 days after the investigation.

 Carrier attempted to justify this delay on the ground that it was unable to locate the Claimant until December 4, when Claimant arrived to pick up his pay check.

 Yet it stands uncontradicted in the record that Claimant provided Carrier's hearing officer with conclusion of the hearing. If this were not so, then how could Claimant have received his transcript of the investigation at this temporary address?

 Moreover, it is also uncontradicted that Claimant was on the property on November 27, but was unable to obtain a copy of the decision.

 In addition, the letter to Claimant was apparently found in the same envelope as the letter to Bovello, when the latter came by Carrier's office on December 2.

 These last two points contradict Carrier's position that the decision on Claimant was issued on November 26.

 In sum, Rule 25 was violated by Carrier in that a written decision was not given to Claimant within ten days following the conclusion
 of the investigation. .(
                  Award Number 21415 Page 3

                  Docket Number CL-21292


Under some circumstances, this procedural shortcoming may well constitute reversible error. Carrier disregards the contractual mandates in this regard at its peril. However, in the circumstances of the instant case, there was no demonstrable prejudicial effect upon Claimant's case by Carrier's procedural defect. Accordingly, we conclude that Carrier's
 violation does not in the facts of this case constitute reversible error. i
 Turning now to the merits of the case at hand, a careful reading - '
 of the 73-page record of formal investigation, as well as the arguments
 of the parties, reveals that there is not substantial evidence to sustain
 all of Carrier's charges against Claimant.

 The record reveals that Claimant did argue with Bovello. and was quarrelsome and boisterous, and that both Claimant and Bovello used "lots of profanity." However, the record reveals that the profanity was the normal-type yard office cussing, although "the tone and volume was not."

 As far as the wrestling or scuffling between Claimant and Bovello at the carry-all, the record clearly shows that Bovello was the aggressor, while Claimant took no aggressive action whatsoever, but merely did no more than was sufficient to defend himself. Claimant at no time assumed the offensive.

 In light of these circumstances the Board finds that Carrier's dismissal of Claimant between November 6, 1974 and January 16, 1975 is exceedingly harsh. Therefore,, Carrier's discipline is to be reduced to a suspension without pay, although with seniority rights unimpaired, for the period of November 6 through November 30, 1974.

 Claimant is to receive all back pay to which he would have been entitled for the period December 1, 1974 through January 16, 1975, but without payment of interest.

        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 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
                                                          i


                  Award Number 21415 Page 4

                  Docket Number CL-21292


That the Agreement was violated to the extent indicated in the above opinion.

                    A W A R D


        Claim upheld to the extent'indicated in the above opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTESTS ~ ~~s1~
 Executive Secretary

 Dated at Chicago, Illinois, this 18th day of February 1977.

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