PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Written notice is hereby served of my interest to file
 Ex-Parte Submission with your Division of the Board within thirty (30) days after this notice covering the following unadjusted dispute between myself and The Chesapeake and Ohio Railway Company.
Statement of Claim
"(a) The Carrier violated provisions of the Clerks' General Agreement and Supplements thereto, when on October 25, 1978 it's Officers wrongfully, capriciously, and arbitrarily dismissed M. K. Humphrey from Service.
"(b) That the Carrier shall be required to cancel such dismissal and rights and benefits associated with such employment restored.
N(c) That the Carrier shall be required to compensate M. K. Humphrey for all wages, and other benefits lost as a result of such wrongful dismissal."
OPINION OF BOARD: On October 12, 1978, claimant was sent the following by
 D. J. Schisler, Asst. Regional Supervisor of Materials, Raceland Car Shops:






At the hearing held on October 20, 1978, claimant was represented by Guy Evans, Local Chairman, BRAC and also F. E. Clark, Local Representative, both of whom participated in the hearing by questioning witnesses.
                      Locket Number MS-24586


Prior to her dismissal, claimant was employed as a steno-clerk. On September 5, 1978, she was at work at her regular position but went home early from work with permission. On September 8, she called in and marked up for work on the following Monday morning, September 11. On the morning of September 11, she reported off work due to personal illness, more particularly as personal injury due to a fall in her bath tub. She remained off work due to illness until October 11, 1978. During the period of her absence she was employed by the Lawrence County Joint Vocational School where she worked as a teacher on October 3, 5 and 10. Claimant did not secure written permission to accept other employment while laying off due to illness as required by Rule 28(e) of the labor agreement. Rule 28(e) provides as follows:
        "Employees on leave of absence, or laying off account of sickness or injury, accepting other employment without written permission from the proper officer of the department in which employed and the Local Chairman of the employees in the seniority district affected, will be considered out of service."


During the period of claimant's employment from 1964 until her suspension she compiled an irregular attendance record as follows:
        _Year Sick Days Leave Days

        1964 124

        1965 23

        1966 95

        1967 59

        1968 21

        1969 120

        1970 43

        1971 19 24

        1972 120 16

        1973 84

        1974 254

        1975 42

        1976 208

        1977 65


Due to claimant's absenteeism record her supervisor questioned the influence of her outside activities on her employment with the Carrier. Receiving information she was employed at the Lawrence County Vocational School, her supervisor together with the Captain of Police went to the school where they found her employed as a typing instructor.
Claimant admitted she had outside employment during the period she was marked off as stated in the charge. She also admitted she had not secured permission for such employment in writing from the Union and the Carrier as required by Rule 28(e), giving,as a reason that she did not know of the requirement. At the same time, however, claimant admitted having been employed by the Carrier some 21 years.
            Award Number 24562 Page 3

                      locket Number MS-24586


The evidence that claimant had outside employment while marked off due to sickness is clear and unrefuted. The requirement of Rule 28(e) for written permission is likewise clear. The penalty is automatic in that such infractions result in the employe being "considered out of service^.
Evidence shows claimant had ample time to prepare her defense and, was given due notice of the offense and was vigorously represented at the hearing by representatives of the Union. There is no claim that she did not receive a fair and impartial hearing. The evidence in support of the Carrier charges is clear and convincing. In view of these facts and the self executing provisions of Rule 28(e) we find no basis for sustaining the claim. As stated in First Division Award 16785, Referee Charles Loring held:
        ·In these investigations as to whether a discharge was wrongful, the Carrier is not bound to prove justification beyond a reasonable doubt as in a criminal case or even by a preponderance of evidence as does the party having the burden of proof in a civil case. The rule is that there must be substantial evidence in support of the Carrier's action."


        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 meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        Nancy er - Executive Secretary


Dated at Chicago, Illinois, this 17th day of November, 1983.