PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Machine Operator J. J. Searles for alleged violation of "Rule M" and "Rule L" was without just and sufficient cause (System File 100-58/2579).
(2) The claimant shall be reinstated with seniority and all other rights unimpaired, his record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: Prior to the occurrence giving rise to the dispute herein,
 Claimant, who entered Carrier's service January 7, 1980, was employed as a machine operator, assigned to Extra Gang 366, and was working under the supervision of Roadmaster D. W. Beaver and Extra Gang Foreman J. C. Mankin, Jr.










                  Docket Number MW-25259


        "Please be present at the above mentioned time and place. You may have representation and any such witnesses you may desire to appear in your behalf."


The hearing commenced as scheduled on May 12, 1972, was recessed about 2:12 P. M. on that date, and resumed at 10:00 A.M., June 8, 1982.
A transcript of the hearing has been made a part of the record. Following the hearing, Claimant was notified on June 10, 1982, of his dismissal from the service.
In the hearing, in response to a question by the Roadmaster, who was the conducting officer, Claimant stated that he was not familiar with and did not understand the rules that he was charged with violating. On questioning by his representative, Claimant stated that he had never heard of and was completely unaware of General Rule "L' of Circular DP-2, referred to in the letter of charge. No evidence was introduced that Claimant was or should have been familiar with the rule.
The Foreman testified that he was present when the Claimant used Carrier's telephone at North McAlester, Oklahoma, to make a long distance call to the General Chairman, and that he told Claimant that he would have to pay for the call. The Claimant testified that he told the Foreman that he would pay for the call, and also told the Agent on duty that he would pay for it. There is no evidence that the Foreman told the Claimant that the telephone call to his Union representative was prohibited or contrary to any rule. The Agent testified that he did not recall Claimant offering to pay for the long distance telephone call. There is nothing to indicate that Claimant did actually pay for the long distance call.
As to the charge for being absent from duty without permission on April 1, 1982, there is no dispute that claimant did not report for duty on April 1, 1982. He claimed that his absence on that day was due to sickness; that he could not obtain prior permission to be absent due to sickness; but that he called the agent about 8:00 A.M. to leave a message to the Roadmaster or Foreman. The Agent testified that Claimant did not call him but that there were several people in the office at the time and it was possible that someone else could have answered the telephone. In the investigation Claimant introduced a statement from Doctor Lonnergan, dated May 12, 1982, reading:
        ·To Whom It may concern:


        I saw Mr. Jim Searles in (sic) Thursday, March 25th for allergic rhinitis which had become particularly bad. I treated him with a decongestant at that time. By his report his allergies became severe the following week forcing him to miss work April 1-2. Ple excuse him from work during this time."

                    Award Number 25156 Page 3

                    Locket Number MW-25259


Our attention has also been called to Rule 4, Article 7, of the applicable Agreement, reading in part:
        "...Permission must be secured in the usual way from foreman or supervisor for temporary absence for any duration, except in cases of illness, when foreman or supervisor must be notified as soon as possible."


Claimant was absent on April 1 and 2, 1982, and there is evidence that on April 2, 1982, the Roadmaster went by to see the Claimant. Claimant was not charged for his absence on April 2, 1982.
Based upon the entire record, the Board concludes that some discipline was warranted, but that permanent dismissal was excessive. We will award that Claimant be restored to service with seniority and other rights unimpaired, but without any compensation for time lost while out of service.
        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 discipline was excessive.


                    A W A R D


        Claim sustained in accordance with Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        Nancy er - Executive Secretary


Dated at Chicago, Illinois, this 30th day of November 1984.