(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Baltimore and Ohio Railroad Company

(1) The 'five (5) days overhead suspension' of Trackman C. W. Sirk was without just and sufficient cause and disproportionate to the offense with which charged (System File 2-MG-1426).



(3) As a consequence of 1 and/or 2 above, the claimant's record shall be cleared of the charge and he shall be reimbursed for any monetary loss suffered (Agreement Rule 48-e)."

 OPINION OF BOARD: By letter dated March 17, 1975, Claimant Sirk was
 informed that he was disciplined by "five (5) days
 overhead suspension" as a result of evidence adduced at a hearing held
 on February 26, 1975 concerning the charge of "being absent from duty
 without permission on Monday, February 3, 1975, and Tuesday, February 4,
 1975." Claimant lost no time from his assignment as a result of either
 attendance at the hearing or the assessment of the five (5) days overhead
 suspension.

 On appeal initiated in his behalf by the General Chairman under date of April 29, 1975 it was first contended that no discipline notice had been given as required by Rule 48(a). The later contention by petitioner (letter dated hay 6, 1975) was that the local chairman who represented claimant at the hearing was not given a copy of the discipline notice as required by Rule 48 (a) which provides as follows:



        "twenty (20) days from the date alleged violation occurred the employee shall be notified in writing of the precise charge against him, and he shall have reasonable opportunity to secure the presence of necessary witnesses and a representative if desired. Such notice shall specify the date, time and place of the hearing which shall be held not earlier than five (5) days nor later than ten (10) days from the date employee is notified. The employee and his representative shall be notified of decision, in writing, not later than twenty (20) days following completion of hearing."


Carrier concedes that it erred in not giving the local chairman a copy of the notice of discipline letter. However, they argue that such inadvertent oversight was not prejudicial to claimant's rights and direct our attention to precedential Awards in support of their position.

 We believe that the conclusion reached in this regard in Award No. 9 of Public Law Board No. 1210 (Neutral Member Roadley) which involved the same parties as are involved in this dispute is controlling here. In Award No. 9 it was written:

        "* * * Carrier maintained that this was an inadvertent oversight and did not adversely affect the status of the matter. On this point Third Division Award 11775, treating with an almost identical allegation, stated, in part:


          `. . . We hold to the general view that procedural requirements of the agreement are to be complied with but we are unable to agree that Carrier's failure in this regard, under these circumstances, was a fatal error which justifies setting aside the discipline ultimately imposed.'


        "The foregoing rationale is appropriate in this instant case. * * *."


See also Third Division Award Nos. 20423 (Lieberman), 11775 (Hall), 8807 (Bailer), 4781 (Stone).

 As to the merits of the case, the record contains substantial evidence, including claimant's own admission relative to the February 3rd date, to support the assessment of discipline. Five (5) days overhead (record) suspension is neither excessive, arbitrary or capricious. The claim must be denied.
                    Award Number 21805 Page 3

                    Docket Number MW-21806


        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

        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOPS

                          By Order of Third Division


                  4P 7

ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 30th day of November 1977.