(Brotherhood of Railway,, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Fbiployes PARTIES TO DISPt1TL: (The Atchison, Topeka and Santa Fe Railway Company

(a) Carrier violated the current Clerks' Agreement at Oklahoma City, Oklahoma, when on February 15, 1980 it dismissed T. S. Bendau from service, and

 (b) Carrier shall now restore T. S. Bendau to service with all seniority rights and other rights accruing thereto unimpaired, and

 (c) Claimant Bendsu shall be allowed eight (8) hours' pay for each work day (forty (40) hours per week), commencing February 16, 1980 up to and including date of return to service of the Carrier at the rate of her Clerk to District Supervisor's position, plus any subsequent wage adjustments.

 (d) Claimant's record shall be cleared of all charges that now appear is the transcript of the investigation held February 15, 1980·

 OPINION OF HOARD: On February 4, 1980, the Claimant tree directed to attend the
 formal investigation concerning her alleged falsification
 of time claims for the period. of January 16 through January 30, 1980. The investi
 gation was held February 15 and subsequent thereto, on March 4, 1980, the Carrier
 dismissed the Claimant.

 The Organization first argues that the discipline should be overturned because Rule 24 (b), which requires a notice of precise charge prior to investigation, was violated. They argue the letter of charge was not precise as charge., nature of the charges to be investigated. Quoting from


cannot be considered precise. The Organization also argues that while the Claimant may have been lat failed to refute the Claimant's allegation that she made up the lost time as she had previously done in line with past practice. The Claimant testified that she tried to make up the time by working over her lunch period and/or after assigned hours and cited one occasion where she worked over while waiting far a ride home. The


simply sharing the Claimant was late and claimed full time. The Organization next argues that even if the Carrier had met its burden of proof$ the penalty of dismissal is excessive end unreasonable especially in light of the extenuating circumstances invo concerning charges for falsifying time sheets reserve dismissal for only the moat blatant of cases. Moreover, they direct attention to a variety of awards which have reinstated employee under similar circumstances. In this regard they direct the Board's attention to Third Division Award 21122 wherein Referee McHrearty stated:

        "This Board appears to agree generally that some discipline is warranted when an employee is proved to have falsified time or production records employment applications or other Carrier docents. However, it moat be shown th deliberate one with intent to defraud rather than a mere oversight or lapse of memory . . . . Becaus reflects upon a person's character and standing is society at larger the evidence presented by the charging party, the Carrier, must be fully persuasive i.e., truly substantial."


The Organization further argues that there is no evidence that the Claimant acted with deliberate intent to defraud the Carrier. On the contrary,, they believe the record shoos the opposite to be true. They direct attention to the Claimant's testimony that it was not her intent to claim more than properly due her. They suggest that the mistakes, if any were the result of an employee working under duress. In this regard they direct attention to a letter from the Claimant's personal doctor which indicated that the Grievant had surgery on January 20, 1980, and that it had been recommended to her that she take two-three weeks off from work in order to recover from the surgical procedure. The doctor's letter also noted that the patient did not take off the recommended tuna and that she was not fully recovered from the surgery and as a result was under a great deal of stress and that this possibly had been affecting her ability to perform her normal duties.

 The Carrier argues that there is clear evidence that the Claimant was guilty as charged. They direct attention to testimony by the Claimant's supervisor and clear admissi she did not work. They believe the testimony establishes there were discrepancies between time claim Discrepancies ranged from two minutes to 45 minutes is duration. Moreover, they direct attention to testimony which they believe established that the Claimant claimed sick pay for two days when she was actually off for reasons other than sickness. The Gassier also asserts that the Organization's argument that the Claimant was not advised of the precise nature of the charge is totally unfounded. They believe the apprised the Claimant of what set of facts and circumstances were under inquiry. They believe the charge was precise enough to allow the Claimant to prepare a defense and as-evidence of this they direct attention to the testimony of the
                        Award Number 23950 Page 3

                      Docket Number CL-240


Claimant which is indicative that she cams to the hearing aimed with statements concerning dates under the investigation and therefore knew the nature of the charges. Regarding the quantum of discipline, they believe that dismissal is appropriate for a charge such as this one, which involves dishonesty. Moreover, they direct attention to the Claimant's past record which indicates she was given discipline on six occasions, all of which involved tardiness and absence from duty without proper authority. This "discipline" involved one reprimand and five (5) separate issuances of demerits.

 In respect to the Organization's argument the charge was not precise the Board finds that it is without sufficient foundation to overturn the dismissal. The Board concludes that the charge was sufficiently adequate to enable the defense and moreover, if the Organization were surprised or disadvantaged at the hearing then a postponement could have been requested. It is clear that the Claimant came to the hearing sufficiently prepared to defend herself.

 Regarding the evidence, it is the conclusion of the Board that there is substantial evidence that the Claimant was guilty of the charge. (here were in fact discrepancies between the time claimed and time actually worked on the various dates outlined by the investigation. However, the Board cannot conclude that permanent dismissal is appropriate under the circumstances. The Hoard is not convinced that these discrepancies were deliberate or purely intentional acts of dishonesty. Although such mistakes are serious, we agree with Referee McBrearty in Award 21122 that dismissal cases such as this should be reserved for situations where there is persuasive and substantial evidence that the discrepancy was deliberat by corrective discipline. The Board does not believe that dismissal user the facts and circumstances of this case is appropriate for a first offense. The (terrier did argue is their submission and rebuttal that the dismissal was appropriate considered is Organization properly objected to the inclusion of the past record into the Carrier's submission and A review of the record confirms that the past record was never made a matter of evidence or argument on the property and therefore cannot be considered. In vita of this and other considerations discussed above, it is the conclusion of the Board that the discharge is excessive and we direct the Carrier to reinstate the Claimant to service with all seniority rights unimpaired but without pay for time lost.

        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 Fnployes within the meaning of the Railway Labor Act, as approved June 21, 1934;
                        Award Number 23950 age 4

                        Docket Number Q.-24082


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

        That the discipline ryas excessive.


                        A W A R D


        Claim sustained is accordance with the Opinion.


                          ltATIORAL RAILROAD ALITUSTMEIVT BOARD

                          By Order of Third Division


ATTEST: Acting Executive Secretary
 Rational Railroad Adjustment Beard

 BY
 ~semarie Branch - Administrative Assistant

 Dated at Chicago, Illinois., this 14th day of July 1982.

 j~/<< ' C ~ I ;'

 N AUG J
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