Case No. 4


PARTIES TO DISPUTE:

      Brotherhood of Maintenance of Way Employees and Norfolk and Western Railway Company


STATEMENT OF CLAIM:

      1. The carrier violated the effective Agreement dated April 1, 1951, on July 11, 1977, when it dismissed

      claimant Howard L. Cammon from service. `


      2. The dismissal of the claimant was excessive, capricious, unwarranted and unjustified. The claimant now be restored to service with seniority and benefits unimpaired, and payment allowed for the assigned working hours actually lost while out of service.of the railroad, at not less than the rate of pay for position formerly held, or for the difference in rate of pay earned if in or out of the service.


FINDINGS:

      This Board upon the whole record and all the evidence finds that:


The carrier and employee involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as amended.

 This Board has jurisdiction over the dispute involved herein.

 OPINION:

      The Claimant was classified as a Laborer and assigned to


the S-11 Surfacing Gang as a Ballast Regulator Operator at the

 time of events germane to this case. He had about five years
 service with t*Carrier. The record shop that camp cars were available for the S-11 crew and that the Claimant used such facilities. His assigned work hours were.7:30 a.m. to 4:00 p.m. As a Ballast Regulator Operator, the Claimant operates a machine (the "Regulator") which apparently ranged along. the Line of road, not always immediately in conjunction with the rest of the 8-person crew; therefore, be "kept his own. time" and. turned in his hours.. The: record also indicates that his superior at the-time of events in this case was a newly appointed "Roadmaster", who kept his own record of when his assigned employees arrived to work and when tbey departed. According to the Roadmaster's records, the Claimant either reported late or left` early, or both, or did not report at all. bn April 14,. 15, 19, 21 and 26, 1977;_ as of April. 26, 197T, the Roadmaster disqualified the Claimant as Ballast Regulator Operator -- a decision the Claimant disputed. The record shows that the Claimant turned. in his time for the aforementioned dates; as if he-had worked full days; it was this alleged falsification of time sheets and unauthorized . absences that resulted in a charge, investigation and his subsequent termination, ore or about July 11, 1977.
 According to the Carrier, the Roadmaster's records accurately reflect the Claimant's movements on the dates in

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 question. In his absence, per the Carrier, a supervisor would
 have to takelthe Regulator out on the line of road and operate
 it until the Claimant arrived. Also per the Carrier, when the
 Claimant would leave his work station prior to the close of his
 shift -- doing so without permission -- a supervisor or another
 employee would have to be responsible for taking it out of ser
 vice. According to the Organization, while the Claimant may
 have been tardy a day or so during this period; he was never
 hours late as asserted by the Roadmaster, did not leave his
 duty station early and always obtained permission if he had
 to leave temporarily. The Organization points out that had
 the Claimant been as late as complained of here, the Carrier
 would have been obliged to "upgrade" or reassign a qualified
 employee to operate the Regulator -- a circumstance that did
 not occur.
 On review of the record of this case, we are persuaded that the evidence sufficiently supports the Carrier's contention that the Claimant was not at duty as was required, was apparently unconcerned about leaving his assignment before a full day's service was tendered and also felt no hesitation to claim full compensation for the day as a result. We are inclined to conclude, however, that the Claimant was not doing so with intent to deceive in the process; considering the fact that he was uncon-

cerned about how he. approached his work site, Late,in clear view

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of the Roadmastf, he apparently was under the disillusion that
 this was acceptable conduct. And, assuming the Roadmaster's
 testimony to be factual, this continued for a number of days
 without any apparent rebuke from the Roadmaster; indeed, the
 first note of disagreement was apparently the Claimant's dis
 qualification on April 26,. L977. _ -,, ..
    '. Whether or not the Claimant was testinge the Roadmaster's

mettle, continuing.bad worfc practices that had been tolerated -
 before, before, eta- is not evident from the-record, but whatever the
 basis for such iIl-conceived habits might have been,. they da
 not .justify his actions and claim of unearned compensation; we
 reiterate that a lack of showing was-made of intent in that
 regard. Me alsa-.note a lack of action on. the part of the
 Roadmaster to officially- register the unsatisfactory nature
 of the Claimant's actions. While we take no exception, to the
 Carrier's rationale for discipline of the Claimant, we find
 reason to. mitigate the removal to a disciplinary suspension.
 We trust that the Claimant will have corrected.his problems
 that Led to his non-availability for work on a regular basis
 and now- knows a full day's pay depends upon a full. day's
 work.
 AWARD:
        Claimant will be returned to work with his seniority

rights intact, but with no back pay for the reasons set

 forth in the Opinion.

 Jante~earce, Neutral Member

 Xwd. a6- 19312

 G. C. Edwards, Carrier Member W. E. LaRue, Organization Member

 Dated this a day of ~~ at