(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (St. Louis-San Francisco Railway Company

1. The Carrier acted in an arbitrary, capricious and unjust manner and violated the agreement between the parties when on June 26, 1978, it dismissed Clerk 0. R. Whitehead from the service of the company.

 2. In view of the foregoing arbitrary, capricious and unjust action of the Carrier, it shall now be required to;









                      Docket Number CL-22825


OPINION OF BOARD: The claimant, who had been in Carrier's service about
 twelve years, was assigned to Services Clerk-General,
 Position No. 1, in the Print-Mail Room, located in Carrier's General Office
 Building, Springfield, Missouri, hours of assignment 7:30 A.M. to 11:45 A.M.,
 and 12:15 P. M. to 4:00 P.M., Monday through Friday. He was to divide his
 time, as needed, between the mail room and the reproduction room.

 On June 16, 1978, claimant was issued two citations to appear for formal investigations, one to commence at 10:00 A.M., June 20, 1978, and one to commence at 2:30 P. M., June 20, 1978. The first investigation involved:

        "xxxx your reported refusal to work in the reproduction section as instructed by Foreman of the reproduction section, at or about 2:30 PM, June 15, 1978; and, for your reported absenting yourself from your duties without proper authority, at or about 2:30 PM on June 15, 1978."


The second investigation involved:

        "xxxx your alleged refusal to report to my office, as instructed by the Head Services Clerk, at or about 2:03 PM, June 16, 1978."


A copy of the transcript of each of the investigations has been made a part of the record.

 The Board has carefully reviewed the transcript of each investigation and finds that none of claiman violated. There was substantial evidence in each investigation in support of the charge. However, the charges and the evidence in support thereof, were not sufficiently serious as to warrant permanent dismissal.

 While the Board is reluctant to substitute its judgment for that of the Carrier as to the amount of discipline imposed, the penalty of dismissal is so out of proportion to the seriousness of the offenses involved herein, that the Board feels justified in reducing the discipline. It is the conclusion of the Board that a disciplinary suspension of no more than six months would have been appropriate.

 We will award that the penalty assessed be reduced to a six-months disciplinary suspension, following which claimant shall be reinstated and compensated in accordance with Agreement rule No. 31.
                      Award Number 22862 Page 3

                      Docket Number CL-22825


The Organization has presented no agreement support for Parts (c), (d) and (e) of the claim, and they are denied.

        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 discipline imposed was excessive.


                      A W A R D


        Claim sustained to the extent indicated in the Opinion and Findings.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST; Ag/Ali A"ZaLooof
        Executive Secretary


Dated at Chicago, Illinois, this 30th day of May 1980.
                                            Serial No- 306


                NATIONAL RAILROAD ADJUSTMENT BOARD


                        THIRD DIVISION


                Interpretation No. 1 to Award No. 22862


                      Docket No. CL-22825


NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks,
 Freight Handlers, Express and Station Employes

 NAME OF CARRIER: St. Louis-San Francisco Railway Company

 Upon application of the representative of the Carrier involved in the above Award that this Division interpret the same in the light of the dispute between the parties as to the meaning and application, as provided for in Section 3, First (m) of the Railway Labor Act, as approved June 21, 1934, the following interpretation is made;
The claimant was discharged by the Carrier on June 16, 1978. A claim was made on his behalf and progressed to this Division by the Organization. In Award 22862 the Division held

        "We will award that the penalty assessed be reduced to a six-months disciplinary suspension, following which claimant shall be reinstated and compensated in accordance with Agreement rule No. 31."


        Agreement Rule No. 31 reads:


        "If the final decision decrees that charges against the employe were not sustained, the records shall be cleared of the charge; if suspended or dismissed the employe shall be reinstated and paid for all time lost (if any), less any amounts earned in other employment."


The request for interpretation involves the issue of the amount of pay claimant is due. In the handling on the property the Carrier,.sequested the claimant to furnish a copy of his 1978 and 1979 Federal Income Tax returns, a copy of his 1978 and 1979 Missouri State Income Tax returns, and also a sworn statement of his earnings January 1, 1980 through June 9, 1980, for use in determining the amount to
The claimant declined to furnish copies of his Federal and State Income Tax returns as requested, as he considered such requests an invasion of privacy. The Carrier contended in the on-property handling that claimant owned and operated a print shop, known as Fast Copy, at 1807-H. S., Glens tone Plaza, Springfield, before and during the time he was out of service.
                      Award Number 22862

                      Docket Number CL-22825


In our view the Carrier was within its rights in requesting the submission of the income tax ret information what credit, if any, should be applied to the back pay. (See Interpretation No. 1 to Award No. 19744, Docket No . CL-19696, Serial No. 276.)

 With the Organization's response to the request for interpretation, it has furnished copies of joint Federal Tax Returns of claimant and his wife for the years 1978 and 1979, and a statement prepared by a Certified Public Accountant covering the business carried out at the Fast Copy establishment from January 1, 1980 through June 9, 1980. The Organization advised the Board that copy of its response was being furnished the Carrier. We assume that copies of the Federal Income Tax returns and copy of the statement prepared by the Certified Public Accountant were also furnished the Carrier. If, for some reason copies were not furnished to the Carrier, they should be furnished promptly.

 The Federal Return for 1978 shows no earnings other than from the railroad prior to dismissal. T business, as does the statement prepared by the Certified Public Accountant for the period January 1, 1980 through June 9, 1980.

 We do not consider that the Carrier needs any additional figures to arrive at the amount due claimant under Award 22862. As the statements furnished show no earnings from the business during 1978, and that it operated at a loss during the year 1979, as well as for the period January 1, 1980 through June 9, 1980, we do not consider that deductions can properly be made under that part of Rule 31 reading

        "... if suspended or dismissed the employe shall be reinstated and paid for all time lost (if any), l earned in other employment."


Referee Paul C. Carter, who sat with the Division when Award No. 22862 was adopted, also participated with the Division in making this interpretation.

                                NATIONAL RAILROAD ADJUSTMENT BOARD

                                By Order of Third Division


                                                              f


            Executive Secretary


Dated at Chicago, Illinois, this 15th day of May 1981.

                                                              i