(Brotherhood of Railvay, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES RO DISPUTE: (Terminal Railroad Association of St. Louis

1. Carrier violated the Clerks' Rules Agreement when it arbitrarily suspended Mrs. A. E. Oestreich from its service for a period of fifteen (15) days following investigation, without giving reasonable consideration to the testimony given and the mitigating circumstances involved.

3. Carrier shall now be required to compensate Mrs. Oestreich for all wage losses sustained due to Carrier's arbitrary and unreasonable action.

 OPINION OF BOARD: Claimant, a Clark with seniority date of July 17, 1978,
 on Master Roster No. 3 Seniority List was employed by
 Carrier for the purpose of filling temporary and short team vacancies as
 needed.

 Early on the morning of November 27, 1978 (5:09 A.M. or thereabouts), Claimant, who was the least senior employe on Master Roster No. 3, was contacted via telephone by Crew Clerk Schultze,, the Boardmarker to fill a PBX vacancy beginning at 7:45 A.M. on that same morning. The record shows that Claimant and another employs, Ms. L. Volner, who was actually contacted before Claimant, refused said assignment and said position was blanked for the remainder of the day by Carrier. As a result of this situation, Clai (15) day suspension it being charged that she failed in her obligation to protect the PBX vacancy for which she had been called.

 Organization's major contention in this dispute is that Claimant was a relatively new employe (approximately 4 months' seniority) and was unaware of (harrier's Rule regarding the protection of the extra assignment. In support of this contention, Organization argues that Claimant was never "advised or given instructions as to the procedures or regulations to be followed as an extra clerk." Organisation further argues that upon receiving the Crew Clerk's teleph was led to believe that the PBX assignment was "optional" and could be refused without penalty. Moreover, Organization further maintains that
                    Docket Number CL-23205


Claimant's reason for refusing to perform the subject assignment ("up at least half the night caring for her 8 month old daughter who was ill"), was legitimate and reasonable grounds for such action.

 In summary of its basic position, Organisation contends that Carrier's actions in this dispute were arbitrary, unjust and unreasonable because, according to Organization, Carrier failed/refused to consider the various mitigating circumstances which were operative in this case.

 Carrier's position in this dispute, simply stated, is that Claimant failed to protect her PBX extra assignment on November 27, 1978, and that such failure is grounds for discipline in accordance with Rule P of the General Rules as well as Rule 17 and Memorandum Agreement No. 35. According to Carrier, Claimant knew, or should have known of the rules concerning an employe's responsibility in protecting an assignment because, Carrier alleges, at the time of her employment Claimant was furnished with a copy of all pertinent Notices and Rules, and subsequent thereto, Claimant was informed both orally and by written notice from various of her Supervisors that she was expected to work and fill all vacancies for which she was called.

        Further, in support of its position, Carrier maintains that

Claimant failed to fill the disputed assignment "vithout.any reasonable
 explanation." In this regard, Carrier contends that in situations such
 as that involved in this dispute, an employe "has an obligation to work
 when called or at least to give a reasonable and timely lanation for
 not doing so" (Third Division Awards 8512, 10003 and 100979. According to
 Carrier, however, Claimant's refusal herein was neither reasonable nor
 timely; and thus, given the fact that Claimant failed to protect her assign
 ment on November 27, 1978, the discipline which was assessed was neither
 "unjust, arbitrary nor capricious" and there has not been a "substantial
 showing that Ue discipline assessed was excessive due to extenuating cir
 cumstances."

 Given the extensive record in this otherwise seemingly simplistic dispute, as well as the many diverse arguments which have been proffered by the parties in support of their respective positions, there are any number of directions which this award could follow. Suffice it to say, however, that after carefully reading and studying all of the relevant evidence and testimony, the Board is convinced that certain significant mitigating circumstances were operative at the time of this incident and Carrier's failure to recognise same and Carrier's apparent failure to accord them any weight whatsoever in assessing Claimant's alleged guilt, thus renders Carrier's action unreasorable and arbitrary and, therefore, improper.
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                    Docket Number CL-23205


Let there be no doubt that this Hoard wholeheartedly supports and endorses the well established proposition that an employe is obligated to protect his/her assignment and that Carrier, in the exercise of its managerial prerogatives, say discipline an employe for infractions thereof. Innumerable decisions on this and all other Divisions have consistently upheld this principle and, because of their pervasiveness, these decisions need not be specified at this time. Be that as it may, however, it is equally well established that this particular managerial prerogative is not without constraint since management's exercise of said prerogative is clearly circumscribed by considerations of reasonableness and fairness.

 Throughout their argumentation of this case, the parties have focused considerable emphasis upon the question of whether Claimant knew or should have known of her contractual responsibility to protect her work assignment. Despite the obvious significance which such a determination would bring to the reso inconclusive in this respect. Regardless of this particular determination, however, the record does
        (1) Claimant was a new employs whose total seniority with Carrier was approximately only four months;


        (2) the Crew Clerk's telephone call to Claimant on the morning of November 27, 1978, easily could have led Claimant to believe that the disputed assignment was "optional";


        (3) the Crew Clerk did not apprise Claimant that she was the last person in line of seniority and thus could not refuse such assignment without incurring some form of disciplinary action; and


        (4) the crew Clerk himself was unsure of the specific details regarding an employe's obligation in protecting an assignment. Evidence for the last of the three (3) above stated findings can be found in the Chief Clerk's testimony as follows:


              "Q. (Mr. Matthews): Do you know if Mrs. Oestreich protected the PBX job on the date in question?


              A. (Mr. Schultze): No she didn't. She declined the job. She didn't want it you know. After I offered it to her she said that she couldn't work it that day.

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      Docket Number CL-23205


"Mrs. Oestreich: I didn't say that I said no.

 Mr. Matthew: Did you have someone else on the extra board that you sight have called after you called Mrs. Oestreich to fill the vacancy?

 Mr. Schultze- No she's the bottom of the extra board.

 Mr. Matthew s: Did you explain this to her at the time IOU gave the call?

 Mr. Schultze: I don't believe I did. (Emphasis added by Board .

 Mr. Scholbe: Declined the ,job. I see. And I understood you to say that when you called Mrs. Oestreich and offered her the ,job and she declined you did not tell her that she was the last person on the board?

 Mr. Schultze: No I didn't. (Emphasis added by Board).

 Mr. Scholbe: ...Okay, have you ever instructed anyone in the time you've worked, have you ever been instructed by your superiors to notify the person called that they were the final person to be called?

 Mr. Schultze: No, there's kind of a conflict in there between the two boards that we cover. On like #1, !#l Clerks Board they don't have to protect the board after a certain time. And now I understand on #3 that its completel different. But I idn~his at the tine.
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                    Docket Number CL-23205


              "Mr. Scholbe: You had no way of knowing that supposedly you were supposed to inform somebody that they were the last person in line, did you?


              Mr. Schultze: No we didn't have set rules in there well nothi on a er that I know of anyway. (Emphasis added by Hoard).


              Mr. Matthew s: Master #3. All right, what rules do you have pertaining to protecting vacancies on Master #3 Board?


              Mr. Schultze: Well we call them in seniority order of course, and now I understand, now this just came up recently, where they have to, where the do have to rotect the j4;a

              ob s the are called. Whereas on Master 1, ar board marking time they don't have to." (Emphasis added by Board).


Given the above analysis, the Board concludes that there were several significant, mitigating circumstances which were operative at the time of this incident and which, therefore, should have been considered by Carrier in evaluating Claimant's alleged guilt. Furthermore, Carrier's apparent summary disregard for these mitigating circumstances clearly indicates a substantial degree of arbitrariness and unreasonableness on the part of Carrier in the handling of this matter and such action is deemed to be improper.

        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 Employee 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
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                  Docket !lumber Q.-23205


        That the Agreement vas violated.


                    A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: /i(AV
 Executive Secretary

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

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