(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Terminal Railroad Association of St. Louis

(1) The suspension of five (5) days imposed upon Track Laborer R. A. Griffin was without just and sufficient cause, unwarranted and an abuse of justice and discretion (System File 1977-20).

 (2) The claimant's record be cleared of the charge placed against him and reimbursement be made for all wage loss suffered, including overtime, during the period June 6 to June 10, both dates inclusive."

An investigative hearing was held on May 18, 1977 at which time he was found guilty of the charges and suspended from service without pay for five (5) days.

 This disposition was unsuccessfully appealed on the property 3 and is now presently before us for determination.

 In support of his position, claimant asserts that he properly sought permission to be off on April 27, 1977 pursuant to Agreement Rule 22 (a) and was refused. Rule 22(a), which is referenced hereinafter, reads: "Except in case of sickness or personal injury,
 employees must secure permission before laying off unless unavoidably,
 prevented from doing so." He contends that the latter portion of the
 rule particularly the words "unless unavoidably prevented from doing so"
 relates to his predicament and that he fully complied with its intended
 application.

 Carrier, correlatively, argues that the Track Supervisor granted him permission to be off on April 26 and 27 and thus observed its contractual requirements. It avers that claimant had ample time to repair his automobile and was not placed in an unavoidable situation when he asked to be off on April 27. It noted that the five (5) days


suspension penalty was not unreasonable when measured against his "very poor attendance record" and the fact that this was his first disciplinary investigation.

 In our review of this case, we agree with carrier that it provided claimant sufficient time to fix his personal vehicle consistent with the language of Rule 22(a).

 On April 25 and 26, claimant's situation was perhaps unavoidable within the meaning of this rule, but not so on April 27th. At this point, claimant was under a compelling obligation to insure that his car was repaired or alternatively arranged for another mode of transportation to take him to work. To assert that this condition was still "unavoidable" on the third (3rd) day was indefensible.

 Carrier cannot be expected to perpetuate this state of affairs, especially where as here, it provided him reasonable time to repair his car and it needed him on the claimed date.

 We do not believe, on the other hand, that this infraction warrants a five (5) day suspension since Carrier asserted without substantive verification that he had "a very poor attendance record." It should have submitted additional detail on this point.

 Because this was his first disciplinary investigation and he did at least try to seek permission to be off on April 27, we
 1 will reduce the aforesaid suspension to three (3) days to reflect amore judicious balance between the offense and the commensurate penalty.

          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
                    Award Number 22546 Page 3

                    Docket Number MW-22521


        That the discipline was excessive.


                    A W A R D


        Claim sustained in accordance with Opinion.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 28th day of September 1979.