(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, PARTIES TO DISPUTE: ( Express and Station Employes



(1) The Carrier violated the rules of the current Clerks' Agreement, including, but not limited to Rule 26 and the Extra Board Agreement of April 3, 1969, when it arbitrarily and capriciously suspended Ms. B. A. Harrison, from its service from 12:00 p.m. July 14, 1975, to 12:00 p.m. July 26, 1975, a total of 12 calendar days.

 (2) Carrier shall compensate Ms. Harrison for all time lost, including any overtime she could have earned, while suspended from the service of the Carrier from 12:00 p.m. July 14, 1975 to 12:00 p.m. July 26, 1975, and shall clear her record of all charges and discipline assessed.



Carrier indicates that Rule 2 (c) relates to missed calls and that this infraction involved a "passed" call. Carrier argues that Claimaat was guilty of passing a call for a position for which she was qualified to work and that picking and choosing assignments by Extra Board employes was intolerable. Carrier also points out that Claimant had been put on notice previously that her practice of passing calls would not be tolerated further.
                    Docket Number CL-21663 Page 2


Petitioners base their defense first on alleged serious error in the conduct of the hearing in that Claimant's past record relied on by Carrier was not produced as requested. Further it is argued that Claimant's request to pass the call was approved by Carrier's representative, the Chief Clerk.

 This dispute is troublesome in that Carrier's motives, at least as expressed in their submissions to this Board, are thoroughly understandable and proper. It is quite clear that Carrier cannot tolerate Extra Board employes being given the right to determine which jobs they prefer to work, regardless of Carrier needs. However, in this dispute, Carrier's position is not sound. First, Carrier indicated at the investigative hearing that the discipline imposed on Claimant was based in part on her previous record (as distinguished from that of other employes who were not disciplined for similar infractions). However, Carrier failed to produce any information with respect to Claimant's past record, even though urgently requested to do so by Organization representatives. Hence it must be concluded that Carrier did not sustain its position with respect to the quantum of discipline imposed since it failed to produce the evidence essential for that purpose.

 The fact that Claimant's action in "passing" the assignment was approved by the Chief Clerk is also a major flaw in Carrier's position. Testimony at the investigation confirms that the Chief Clerk has the authority to permit employes to pass a call. There is no indication that any rules were violated by Claimant for passing a call with the approval of the Chief Clerk. Carrier, following this dispute, in October of 1975, corrected the basic problem by informing all the clerks that they would not be permitted to "pass" a call. However, that action obviously had no bearing on this dispute. Under the circumstances, the Claim must be sustained.

        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 violated.

                  Award Number 21982

                  Docket Number CL-216(3 Page 3


                    A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: /* 0 -a
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of March 1978.