George S. Roukis, Referee


(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, 8:preas sad station Employee PARTIES 7o DISPRITE: (The Baltimore and Ohio Railroad Company

              STAM240T OF Q.Alhi: Claim of the System Committee of the Brotherhood (GL-9440) that:


1. Carrier violated the Rules of the effective Clerk-Telegrapher Agreement when, on September 5, 1978, it arbitrarily and capriciously suspended let trick Operator Clerk R. G. Butcher. Washington Court House, Ohio, from service of the Carrier, and

 2. As s result of such impropriety, Carrier shall be required to compensate Claimant R. G. Butcher eight (8) hours' pay for each of five (5) dates held true Carrier's service between September 5 and 9, 1978, and

 3. That Carrier shall be required to compensate Claimant R. G. Butcher eight (8) hours' pay bemuse of being denied "Sick Pay" for August 1, 1978, and

 4. That Carrier shall be required to compensate Claimant R. G. Butcher eight (8) hovers' pay because of being held from Carrier's service on August 2, 1978, and

 5. That Carrier shall be required to compensate Claimant R. G. Butcher eight (8) hours' pay far August 7, 1978, because of being improperly held from Carrier's Service to attend as investigation incident to Carrier's improper action, and

 6. That Carrier shall be required to pay Claimant R. G. Butcher eight (8) hours's holiday pay for September 4, 1978 (Labor Day holiday) denied through (terrier's Improper action.

 OPINION OF BOARD: The pivotal question before this Board is whether Claimant
 was legitimately absent on August 1, 1978. If he were not
 properly absents then Cattier had the right to deny his claim for sick pay that
 day, convene as investigation to ascertain whether he failed to protect his posi
 tion and discipline him upon a finding of guilt.

 On the day in question, Claimant's wife had called the Chief Train Dispatcher at Chillicothe, Ohio at approximately 4:55 A.M. to advise her husband would not report to work that morning because he was ill. Claimant
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                        Docket Number CL-24159


was the regularly assigned incumbent of the 7:00 A.M. to 8:00 P.M. lst Trick Operator-Clerk position at Washington Court House, Ohio. The local carrier official was unable to find a replacement until 8:15 A.M. which necessitated same inconvenience. The Toner had to be closed until the other employs shooed up. Believing that Claimant impermissibly reported off sick, the Chief Train Dispatcher derided to visit the little league baseball park in Chillicothe to see whether Claimant, an avid fan of little league baseball, was at the tournament game. H 1:55 P.M., the two officials found Claimant sitting behind the concession stand immediately in front of the back stop and he attempted to elude them by exiting toward the parked automobiles. When the officials confronted him is the parking field cad inquired about his condition, he apprised them that he had not marked off sick. Because the Chief Train Dispatcher believed that Claimant had an obligation to report to w that he had Improperly taken off work that say to attend the game, he removed him from service. Claimant was notified on August 2, 1978 that as investigation was scheduled for August 7, 1978 and he returned to service on August 3 pending the investigation's outcome. On August 29, 1978 he was informed by the Superintendent Agencies and Yard Offices that he was foul guilty for failing protect his poaition.aad suspended from service for five (5) days beginning September 5, 1978. This disposition was appealed.

 In our review of this case, we have carefully considered the procedural and substantive arguments advanced by Claimant, but.we have not found them persuasive. The investiga contracted for due process and the evidence adduced at the hearing fully shows that he failed to properly protect his position on August 1, 1978. Claimant was impermissibly absent on August 1, 1978 and he acted at his peril rhea he did not report to walk but rather attended a little league baseball game. Carrier bad the right to r pay sad discipline him for his infraction, consistent with the applicable rules of the controlling Agreement and it acted properly when it took these measures. Hwever, we find that Claimant was improperly held out of service on August 2 1978, mace he was returned to service on August 3, 1978, four days prior to the August 7th investigation. He should have been returned to work on August 2 under these circumstances. Thus we will award him the eight (8) house pay claimed

 is Part 4 of the Statement of Claim-' The penalty of five (5) days suspension
 as the other hand, was not unreasonable or an abuse of ~~ ria1 discretion,
 given the seriousness of this offense send we will sustain Carrier's disciplinary
 action.

        FnWINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        Mat the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Fh<ployea within the meaning of the Railway Labor Act, as approved Tune 21, 1934;
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                      Docket Number CL-24159


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

 That the Agreement vas violated to the limited extent expressed herein.

                      A W A R D


        Claim sustained to the extent expressed herein.


                        ftATIOftAL RAILROAD ADJi15TKEMT BOARD

                        8y Order of Third Division


ATTEST: Acting Executive Secretrary
 National Railroad Adjustment Board

 BY
      osemarie Breach - Adminlstastive Assistant


Dated at Chicago, Illinois this 8th day of June 1982.