(Brotherhood of Railway, Airline and
 ( Steamship Clerks. Freight Handlers,
 ( Express and Station -Thployes
 PARTIES TO DISPUTE:
 (Norfolk and Western Railway Company

1. Carrier violated the Agreement between the parties when on March 8 thru 12, 1975, Clerk L. L. Betz was arbitrarily and capriciously assessed five (5) days actual suspension.

 2. The Carrier's action was unjust, unreasonable and an abuse of Carrier's discretion. The discipline was assessed without any proof whatever of the charges made.

 3. Carrier shall now compensate L. L. Betz for each day held out of service with seniority and all other rights unimpaired.

 OPINION OF BOARD: At 10:08 P.M. on December 29, 19741, Extra Fast 2918
 departed Bellevue Terminal with seven loaded tank
 cars containing dangerous commodities without waybills. Forty days
 later the Carrier charged Claimant, another clerk who also worked that
 night, and the yardmaster on duty with responsibility for the train
 leaving without waybills. On February 27, 1975, a joint investigation
 was held with all three charged employes present, after which Claimant
 and the other clerk were assessed five-day actual suspensions for their
 responsibility. The claim before us seeks removal of this suspension
 on a variety of grounds.

 We have carefully reviewed the investigation transcript and the entire record of handling given the case on the property and find that while a number of procedural objections were made, these have not been sufficiently developed to make a determination on solely those grounds. Therefore, we will deal with the claim on its merits.


On the issue of merits of the claim, we have carefully reviewed the transcript of the investigation and find that the Carrier made a. convincing case only in the one respect that it proved seven tank cars containing dangerous lading were, in fact, included within Extra last 2918 on December 29, 1974 unaccompanied. by their waybills. The investigation did not place upon Claimant the responsibility for that failure to include the waybills with those for the remainder of the train. If an employe is to be charged with failure to perform an act, it is insufficient to merely prove the violation occurred. More is required; responsibility for the violation must be established. This was not.done in the instant case. The claim will be sustained: i

        i'INDINGS: The Third Division of the APjustment-Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the aarployes 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

        The Agreement was violated. ~i~r--..= V`


                  A i4 A 3 D r- n 7

                  10,,77


        Claim sustained.


                                    J J BERG P


                        NATION=,I RP_ILROAD ADJUSTUMTT BWRD

                        By Order of Third Division


ATTEST: (,I6Er:ecutive Secretary

 bated at C=icago, Illinois, this 29th day of September 1977. j