- Will'" G. Caples, Referee


(Brotherhood of Maintenance of Way Zaployes
 PARTIES 7o DISPUT3:
 (The Chesapeake and Ohio Amilvay Company
 ( Southern Region (and Hocking Division)

 STATDONT OF Cr.AIh4: 'Claim of the System Camittee of the Brotherhood that:

 (1) Tae Carrier., without just and sufficient cause and on the basis of naprow en charges, improperly disciplined B&B Mechanic William L. Pegaa on charges that:

 (a) he allegedly falsified his physical condition on August 11, 1980 (System File C-D-995/YG-2909);

 (b) he allegedly operated Crane No. FC'C-705 in an unsafe manner on August 15, 1980 (System File C-D-997MG-2912).

 (2) The above charges be stricken from Xr. Pegrnm's record and that he be reimbursed for all earnings lost in conformity with Rule 21(e).'

 CLOIFIOE CC? BOARD: The Claimant, a B&B mechanic with 11 years service prior
 to June 23, 1980, se cared a leave of absence from the
 Carrier to undergo a hemorrhoid operation . On August 5 he vas released by
 his physician to return to work on August 6, 1980. On August 13 he was removed
 from service under the premise it eat necessary for the Carrier to determine
 Claimant's physical condition. Claimant remised a letter dated that day from
 Carrier to attend an investigation stating:

        "Iou are being charged with fhlsifyiag your physical condition in order to e-rsde your regular duties on August 11, 1980, at the approach trestle to the Float Bridge, U. 8. Navy Operating Base, Norfolk. Virginia, clxisting yon had been placed on 'light duty' by your attending physician...


An investigation vas held which found, Carrier stated, in its disciplixe letter, September 12, 1980:

        "Ion were mot restricted to light duty work by either the doctor's disability certifficates dated August 5 and August 1,3, nor did you Inform anyone of your alleged light duty status until morning of August 11, 1980, after determining day's work activities and then only performed work which was of a light nataxe.

                      bard Number 24405 ftP t

                      Docket Number W-24380.


          "Discipline applied is ten (10) days o-m~ead snspensioa and six (6) math grobatiomry period. Tour serri.ce record rill be marled aean'diagly."


dice elaineat vas tarolred in a seesnd incident on Acguat 15, 1980 vl~au he vas operating a Cram f8M0-705 in the perfarmnee of assigned duties. Id. the operation of the Crsae his saperrisor eh.-gad that he attempted to strike him. with the cane; the CILlimurass, at that time, suspended frog Carrier's serrice. fie snbseqceatly received a letter dated August 25, 1980 to attend an insest3gatioa on September k, 1980:

          `to d&1!arrln. 7auz . responsibility, if d.:7, in the unsafe operation of Crane 3o. RI0-70g, esdangrring the safety of St-aetma Ssqerrisas a. E. Wright.. on August 15, 19$0, at apprcrimsttely 9:00 a.z. on Harbor Fond between pier 9 and pier 14 at Test ?oat Fens, Virginia.'


Mme Osrriar by letter dated &eptasber 17, 1980 stated it had fo=d Maisert at fault in the irrrestigstion and assessed discipline 'applied in five (5) days c&-ual suspension tlnirh ve sill consider as alresdy.bavixg been served during tby t?.me you vere held oft pending iarestisation of the incident." Tae letter Vent on to oaiple the discipline assessed September 12,1980, stating "tbe ten (10) days area suspenaiaa e-ilk. rave ·to.be s--arad as actual vmspenzinn beginning Srpte=bar 24, 1980 `.:.rough October 3, 1980."

 Before dlseassixg ice merits we t=act spxk to a =atention of the Carries that Joiriiag of the haailed cm the property. die is = proper basis for eomplsint in this respect. Mme caeainiag of the cltiss for g.=esen'ltioa to this Board did not expebi or alter tae cIslas. 'fue Osrrier bas in so vay bees misled. The Carrier's coateation in this reaper: is denied tad the claiss ci11 be dirpoatd on their srnrits. See rest ass.-da of this Dirieicm, 22611 and 22499, inroleissg the same carrier and aw'.-rd 22480, all to the sale effect.

 In Claim No. 1, thre was a charge of falsifying of -claimant's physical condition and Carrier found. Claimant guilty assessing discipline of ten (10) days overhead suspension and six (6) month probationary period with the Claimant's service record to be m sustained its burden of proof on this charge. The discipline assessed was not unwarranted., arbitrar
In Claim No. 2, where Claimant was charged with unsafe operation of a crane endangering his supervisor; found guilty by the Carrier in a letter dated September 17, 1980 and discipline applied of five (5) days actual suspension we find the Carrier failed to sustain its burden of proof and the agreement was violated. The suspensio Award Number 24405
 Docket Number MW-24380

 Page 3

 The Carrier in its letter of September 17, 1980 was in error since the letter was based on an incorrect assumption that both disciplines were valid and imposed the ten (10) day overhead suspension. Claimant was suspended from service far a to no factual basis for triggering the overhead suspension. The Carrier is thus chargeable for fifteen days of pay at the Claimant's regular rate and his service record corrected to .remove evidence of the suspension and we so hold.

        yINDI1fG8: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


That the parties waived oral hearing;

 and

 ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 That the Cgrrier and the Eaployes involved in this dispute are respectively Mrriar and Employes vithia the meaning of the Railway Tabor Act, as approved June 21, 1934;

 That this Division of the AdJustme=+ Board has Jurisdiction over the dispute involved herein; and

 That in regard to Claim No. 1, the Agreement scam not violated;

 That in regard to Claim 3o. 2, the Agreement vas violated.

 CCLsia No. 1 is denied.

 CClaia No. 2 sustained in accordance 91th the Opinion.

 NATIDAAL RAILROAD ADIUSM4XYT BOARD
 By Order of Third Division

 By ''~.-"~-y~-.-.-c ~2c t~ fi 7
 Rosemarie Breach-- Administrative Assistant

 Dated at Chicago, Illinois, this 15th day of June, 1983.