PARTIES TO DISPUTE:
 (
 (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

1) Carrier violated the provisions of the Clerks' Rules Agreement at Chicago, Illinois on March 23, 1977 when it improperly terminated the seniority of employs M. Dragisic and assessed the discipline of dismissal without giv or hearing provided for in the Agreement.

 2) Carrier shall be required to exyunge We J0 C. Mender's
 letter of March 23, 1977 from the record personal file of Mr. Dragisic;
 remove any and all alleged misconduct charges; affil compensate him for all pay
 lost from March 24, 1977 to the date of his reinstatement on May 16, 1977.

 OPINION OF BOARD: On March 22, 1977 and March 23, 1977, Claimant telephoned
 his Supervisor, to advise that he would not be in for
 work on those days. Claimant told Supervisor Adkins to "put him does sick."
 Subsequently, Claimant received the following letter dated March 23, 1977,
 from Mr. J. C. Menders, Manager-Accounting Administration, stating:

Claimant responded to the above in a letter addressed to his Supervisor, Mr. J. Me Oommyp as follows:





        "I authorize Mr. F. J. Cumin and members of the BRAC Local Protective Oomnittee to act is my behalf. Please furnish the L.P.C, all information a or correspondence concerning this matter, the same as you would me."


        Mr. Conway then notified Claimant on March 28, 1977:


                      ~r * ~r


        "Your request for an unjust treatanent herring under the provisions of Rule 22(f) will be held is Room 740, UNion Station Building, 516 W. Jackson Blvd., Chicago., Illinois at 2:00 p.m. on Wednesday, March 30, 1977 "


                        ~r ~r


Following the hearing, Claimant's contention of unjust treatment was denied. This decision was appealed on behalf of Claimant by General Chairman J. R. McPherson. On May 9, 1977, Mr. V. W. Merritt., Assistant Vice President - Labor Relations seat a letter to Mr. McPherson which stated. is part:

        "Please be advised it is my decision that the charge of unjust treatment on the part of Mr. Dragisic was and is unsubstantiated, and is wholly without factual and/as schedule rule support; therefore, I concur with the decision rendered by Mr. Elwart.


        "However, feeling that the period of time that has elapsed since Mr. Dragisic's departure from Carrier's service has had the proper effect on him, you may accept that I am, without prejudice$ agreeable to reinstating Mr. Dragisic's seniority rights effective May 16, 1977, and if you are agreeable, to returning him to his former position efPeative that date."


The Organization and. the (terrier signed a letter of understanding, agreeing that Claimant would return to his former position effective May 16, 1977 under the conditions set forth in Mr. Merritt's letter (!am
 .). The instant claim was filed on behalf of Claimant on May 23, 19'(7.
              _ Award Number 23364 Page 3

              Docket Number CL-22565


Rules from the applicable agreement at issue in this case are the following:

        Rule 22(a):


        "An employs who has been in the service more than sixty (60) days, or whose application has been fcamally approved, shall not be disciplined or dismissed without investigation and. prior thereto the employs will be notified in writing of the precise charge. Such charge will be filed with the employs within fifteen (15) days from the date the supervising officer would have knowledge of the alleged offense. At the investigat may be rej=esented by one or more duly accredited representatives. The employs may be held out of se

        pending such investigation, however., investigations

        will be held prior to the time employee are held from service when it is possible to do so."


        Rule 22(c):


        "If an appeal is taken from the investigation, it must be filed with the Assistant Vice President - labor Relations and a copy furnished the official. whose decision is appealed within ten (10) days from date of receipt of advice of decision. A hearing on the appeal will be held within ten (10) days from the date of receipt of request therefor and decision rendered ten (10) days after completion of the hearing on appeal. Copy of evidence taken is writing at the investigation or hearing on appeal will be furnished to the employs and his representative on request."


        Rule 23(g):


        "Fhiployes accepting leave of absence other thaw as defined in these rules shall forfeit all seniority."


We find the issues and circumstances of the present case to be virtually on all fours with those in involving these same parties. In that award, Referee Carter states:

        "The Petitioner contends that the Carrier's action was in violation of Rule 22(a) of the Agreement, is that claimant was removed from the service without the benefits of an investigation user that rule.

                    Award Number 23364 Page 4

                    Docket Number CL-22565


        "It is the (terrier's position that the language of Rule 23(g) is unambiguous, the rule is self-executing, and is the controlling rule.


        "The question to be resolved is whether, under the circumstances that existed, Rule 23(g) was applicable."


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            "It is well settled that language used is as

        agreement moat be given its ordinary and customary

        waning, unless same other intent is clearly indicated.

        The commonly accepted meaning of the term "leave of

        absence" is absence with permission. ~e~ork "Accepting"

        ordinarily and customarily means taking or receiving some

        thing that is offered. The failure of claimant to protect

        his assignment on September 2, 1976, especially alter

        being instructed to do so by his superior officer, can

        not properly be construed as "accepting leave of absence

        other than as defined in these rules," as referred to is

        bile 23(g). It follows.. therefore, that it is our con

        sidered opinion that Rule 23(g) was not applicable. We

        would agree with the contention that the provisions of

        rule 23(g) would be self-executing ii the rule were ap

        plicable."


~t * xFurther, by restoring Claimant to his position with seniority rights, carrier implicitly defines its action as a disciplinary suspension Carrier's action, therefore, comes under the aegis of Rule 22 (e) of the Agreement. We find that (terrier did violate Rule 22 (a) of the Agreement by not affording Claimant a hearing prio claim. Part taro of the claim is sustained except to the extent it departs from the provisions of Rule 22 (e) of the Agreement (supra). Claimant "shall be reinstated ate. pa
        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 is this dispute

are respectively Carrier and Employes within the meaning of the Railway
 labor Act, as approved June 21, 1934; --

                                                          l

              Award Number 23364 Page 5

              - Docket Number Q.-22565


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement vas violated.


                      A W A R D


Claim is sustained to the extent set forth in the above Opinion.

                        NATIONAL RAILROAD ADJUST BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago., Illinois this 28th day of August 1981.
 5.LABOR MEMBER'S ANSWER
                      TO

                      CARRIER MEMBERS' DISSENT IN

                      AWARD 23364, DOCKET CL-22565.

                          (REFEREE EISCHEN)


          The gist of the decision in Award 23364, as in 22479, is that Rule 22(a) and not Rule 23(g) was the proper rule to govern the circumstances. Whether the "without prejudice" settlement affected the Referee's decis course, all the "without prejudice" settlement did was lessen Carrier's liability.

          If the one sentence Carrier Members complain of were deleted, the Award would still be entirely correct, and if the Dissenters are truly interested in good labor relations, they should bear in mind that the time such "objectionable" language is before the adoption of an Award.


                                      Jpvte~ - ,

                                      . · etc er.

                                      Labor Member

              CARRIER MEhIBEERS' DISSENT

              TO

              AWARD 23364 (nochFr c7, X2565)

                    REfERkX

                          EISCHEN


It was pointed out in this case that Claimant was terminated through the self-executing provision of Rule 23(g). However, while this Hoard has concluded that the Discipline Rule should have been folloued., it errs wnen it determines by implication that Carrier's restoration of Claimant substantiates its "action as a disciplinary suspension". It hen always been the right of the parties during the appellate process to amend end to modify actions taken.
 That is the purpose for subsequent levels of appeal and is inherent to good labor relations. Where n is no effective processing of the dispute toward resolution. The reemployment of the Claimant was CARRIER MEhlBFItS' DISSENT TO
 AWARD 23364, DOCKET CL-22565
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 Ir. V. Varga

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