(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES IN DISPUTE: ( (The Washington Terminal Company

(a) The Carrier violated the Rules Agreement effective July 1, 1972, particularly Article 18, when it assessed discipline of dismissal on A. :Nathan, Express Clerks on April 23, 1980, following charges brought against him on April 7, 1980.

 (b) Carrier further improperly assessed a second discipline of dismissal on A. Nathan on April 23, 1980 following charges brought against him on April 11, 1980.

 (c) Claimant Nathan's record be cleared of both dismissals and he be compensated for all wage loss sustained in accordance with the provisions of Article 18(e).

 OPINION OF BOARD: On April 2, 1980, Claimant Nathan was regularly assigned as
 Express Clerk, Washington, D.C. He had been an employe in
 Carrier's service since February 27, 1950 with four (4) breaks in ser-rice.
 During. his tenure with Carrier, Claimant was assessed discipline in eleven (li)
 cases.

 On April 7. 1980, Claimant Nathan was requested to report to a hearing Thursdays April 10, 1980 on the charge of failure to obey the General Baggage Agent's Special Instructions dated February 29, 1980 which state: (1) No more than $20.00 will be kept in the cash register at any given time. Money and checks above that amount will be placed in the drop safe. (2) You will lock the front door to the Express Office if you leave the area unattended. (3) Do not leave the key in the cash register while register is noz being used. Because Claimant failed to appear for hearing on April 10, 1900, it was =ostponed and rescheduled for 1:C0 pm, April 15, 1980.

 On April 11, 1980 Claimant Nathan was requested to report for another hearing at 12:30 pm, April 15, 1980 is connection with the charge ,`,hat he fatted to attend the hearing on April 10, 1980. Both hearings were heard on April 15, 1y80.
                    Docket Number CL-24049


On April 23, 1980 two (2) letters rare sent to Claimant: (1) dismissing him for failure to compl (2) dismissing him for violation of Rules "B" of the Rules and Regulations of The Washington Terminal Company which reads in party 'Employes must know and obey the Rules and Special Instructions---'.

 On April 30, 1980 the discipline was appealed to C. W. Shaw Manager. The appeals hearing was scheduled and heard on May 12, 1980.

 By letter of May 22, 1980 Carrier denied Claimant's.appeal in regards to 'failure to comply with instructions'. By same le 9o 1980 because of a recent development in the case in regards to failure to obey the General Baggage Agents Special Instructions. By letter of June 16, 1980 the Carrier denied Claimant's appeal.

 The Carrier asserts that on April 7., 1980 the Claimant was requested to appear for a hearing on April 10, 1980 and that Claimant failed to appear. Testimony by General Baggage Agent Miller stated that he attempted to serve the letter of charge on the Claimant at about 3:10 pm., April 7., 1980, that the Claimant took the letter, looked at its and then dropped it to the table. Claimant then made numerous comments such as: "I'm not coming to the hearing" and "I'm not going to goo" and the Claimant then walked away.

 The testimony of General Baggage Agent Miller is corroborated by Baggage Foreman Richards. The Claimant denies all knowledge of the letter of charge. Claimant testified that Mr. Miller "attempted" to read "something" to him. but that he had refused to listen.

 In regards to the charge that Claimant failed to obey the General Baggage Agent's Special Instructions dated February 29, 1980 the carrier assents that Claimant was aware of such instructions because he acknowledged receipt of such instructions on March 1, 1980 by his signature.

 Officer Dyer testified that on the evening of April 2. 1980 at approximately 7:20 pm, he found the front door to the Express Office unlocked, keys is the cash register, a considerable amount of money in cash register and nobody in attendance. Officer Dyer testified as follows:

        "Q: Mr. Dyers rhea you entered the Express Office, was the cash drawer open?


      A: No, sir.


      Q: Did you open it?


      A: Yes sir.


      Q: How?


      A: By using the key and depressing the drawer release button.

                    Award Number 23981 Page 3

                    Docket Number CL-240:+9


    "Q: Do you see any money in this register at this tun..=?


      A: Yes Sir, I did.


      Q: How much money?


        A: In the $20 drawer. I saw a crumbled dollar bill; in the tens, one ten; in the fivesp one flues; in the single drawer, a considerable amount; the quarters drawer-- three-quarters full; and miscellaneous dimes and nickels."


The Carrier maintains that Claimant's assertion that he was in the c.·"C,aress Office at 7:20 pm conducting business with ABC News is not true. The Carrier stated that one Way Bill, No. A0326310, with ABC News, was timed at 7:20 pm while a second Way Bill, No. A0326309, was timed at 9:20 pm. Contact with ABC TV Transport Desk indicated that the two shipments made on the evening of April 2, 1980 had left ABC's Office at 9:05 pm.

 Checker Harlan denies that between 7:25 pm and 7:30 pm he was given the cash register key by the Claimant on his way to the restroom~ as Claimant asserts. The Carrier further maintains that Claimant could not have given the key to the cash register to Mr. Harlan because the key was in the cash register as testified by Officer Dyer.

 The Carrier noted that on two (2) occasions, Claimant has been discharged ands each time the Carrier his 28 years of service. The Carrier does not wish to do so in this case.

 The Claimant concedes that he did not appear at the tearing o:: Thursday, April 10, 19w°O. However, Claimant main`.ains and we concur tat such non-appearance does not constitute insubordination 'I"nird Division Award .?o. 219, First Division Award °?o. 20479, wad Award No. 606 of Special aoard of Adjustment No. 195), Further, Claimant r^aintaias that the Carrier did not show that there wasp in fact, a hearing which Maimant did not attend.

 The Claimant asserts that the Carrier rested its case concerning failure to obey "Special Instructions". Claimant further asserts that Officer Dyer's testimony was ambiguous and inconclusive in that "a considerable amount" in the single drawer is not definitive, and that a quarters drawer "at leas three-quarters full" is not definitive. Claimant denies having left more than 320 in the drawer.

        According t0 'u.'13i-'7ant, %neCker :?avian was "'.,Lap irTJ1t 7.n `he --gage

        :

D°_=2T".^-e_^.t: where aal:a8nt gave him tile ".".:win ':ey" t0 the cash register, ACCOiCag t0 :·t". Harlano wherever ChioTanZ would give him the ";win" ne;,t, he (Harlan;, would 6o if the back until Clai:.ant -et -armed. Therefore, it is mot rersuasiv? that Olairant left "the are= unattended".
 Award Number 23981
 Docket Number CL-24049

 Page 4

 Testimony by Checker Harlan indicated that the cash register cannot be "operated" but a knowledg Claimant testified that he gave the "main" key to Harlan before he left the Express Office and Officer Dyer testified that he did not see the "main" key. Therefore Claimant maintains that his responsibility under the "Special Instructions" was not to lea is not being used and Claimant complied with that instruction.

 Upon careful consideration of the record herein the Board finds that Claimant received a fair and impartial hearing. The charge was supported by the preponderance of the evidence on the record.

 The Hoard concludes that under the circumstances the discipline assessed was not prised on capri denies the claim.

        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 aeaning.of the Railway 'Labor Acts as approved .Tune 21., 1934;

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

 That the Agreement was not violated.

 A W A R D
Claim denied.

 ATTEST: Acting Executive Secretary
        National Railroad Adjustment Board


NATIONAL RAILROAD ADJUSUfENT BOARD
 By Order of Third Division

 Rosemarie Branch - Administrative Assistant

 Dated at Chicsga, Illinois, this 27th day of August 1922:~"'" ao