(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The sixty (60) days of suspension imposed upon Laborers R. C. Duran and M. T. Munoz for alleged "violation of the General Notice, General Rules B, E, and G, and General Regulations 702 and 702(B)" was arbitrary, capricious, unwarranted and on the basis of unproven charges (System File 6-22-11-14-55).

 (2) The claimants' respective records shall be cleared of the charges leveled against them and they shall be compensated for all wage loss suffered.

 OPINION OF BOARD: The Claimants, Duran and Munoz, are employed by the Carrier
 as Laborers. Following a hearing on December 7, 1982, the
 Claimants were assessed sixty (60) days suspension for their involvement in an
 occurrence whereby personnel on Extra Gang 2908 were found drinking alcoholic
 beverages on Carrier property during assigned working hours.

 On November 5, 1982, the Claimants were assigned to Extra Gang 2908 and were working under the supervision of Foreman Barnhill near Rock Springs, Wyoming. At approximately 3:45 P. M. Roadmaster Angel was notified that several Track Department employees had been observed consuming alcoholic beverages in the Rock Springs area. Extra Gang 2908, consisting of a Foreman and twelve (12) laborers, had been assigned to work in that area with assigned hours of 8:00 A. M. to 4:30 P.M. Both Roadmaster Angel and Special Agent Jacobsen traveled the fifteen (15) mile distance to investigate the report. Upon their arrival at the scene, they found the employees of Extra Gang 2908 sitting in personal vehicles parked along the right of way and several open beer cans were on the ground. After inspecting each of the personal vehicles, Special Agent Jacobsen confiscated approximately one case of beer and a partially filled bottle of whiskey. Roadmaster Angel confronted Foreman Barnhill about the situation and he was advised that the men in the Gang had been working hard that week and he [Foreman Barnhill] decided to "reward the men by letting them have beer and taking an early quit".

 On appeal, the Carrier conceded that there was insufficient evidence to conclude that the Claimants actually consumed alcoholic beverages. In the Carrier's view, there was sufficient evidence to support the conclusion that the Claimants were aware of the violation of the Carrier's Rules and they did nothing to protect the Carrier's operations.
                        Docket Number MW-25779


After carefully examining the record, the Board has determined that the Claimants took no affirmative action to halt the violation of the Carrier's Rules. Between the time that Roadmaster Angel was informed of the misconduct of the Extra Gang and the time he and Special Agent Jacobsen arrived at the location of the Extra Gang, roughly 20 minutes had elapsed. Consequently the Board concludes that the Claimants acquiesced in the serious violation of the Carrier's Rules and failed to make an effort to protect the Carrier's operations as they are expected and required to do.

 However, the Board cannot ignore the fact that the Claimants' immediate Supervisor, Foreman Barnhill, decided "to reward the men by letting them have a beer and taking an early quit". Accordingly, it is the Board's judgment that the penalty of 60 days suspension is excessive, and should be reduced to 20 days.

        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 juridiction over the dispute involved herein; and

        That the discipline was excessive.


                        A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
                        r

        Nancy ever - Executive Secretary


Dated at Chicago, Illinois, this 14th day of November 1985.

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