. AWARD No. 6





        Chicago and North Western Transportation Company


STATEMENT OF CLAIM:

        Claim of the System Committee of the Brotherhood that:


          1. The discipline assessed Section Foreman N. D. Nave (30 days suspension February 23 through March 23, 1970 was improper, arbitrary, capricious and without dust and sufficient cause (System File D-11-1-325.


            2. Claimant Nave be allowed pay at the section .foreman rate for all tine lost during the period February 23 through March 23, 19?6.


OPINION OF BOARD:

        Claimant Norman Nave in January, 19?6, was serving as foreman of the night


maintenance of way crew at DeKalb, Illinois. His regularly assigned hours of work

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were from ?:00 p.m. to 3:30 a.m. the following day. On January 25, 19?6, Claimant reported to work at ?:00 p.m. but neither of the other two members of his crew reported for work. Claimant spent approximately two hours trying to locate his supervisor, Roadmaster J. A. Tacks, but was unsuccessful in doing so. He then contacted the Dispatcher, who also was trying to locate the Roadmaster. The Dispatcher informed Claimant that there were no existing emergency problems, teak Claimant's phone number, and told him if anything developed he would call Claimant at home. Thereupon Claimant departed the property at approximately 9s30 p.m. and went to his home. Ile testified that he staged available for call until 3:30 a.m. Thereafter
    Claimant submitted a work report claiming eight hours" pay for the night of January 2`. ?6, 1976. The next two following days were Olaimant's regular rest days and he next reported for work on the night of January 28, 1976. At that time a discussion ensued between Claimant and Roadmaster Tacke regarding Claimant's work report for January 2526. Tacke informed Claimant that he had appeared at the DeKalb depot at approximately 11:00 p.m. on the night of January, 25 to find the depot locked and no one about the premists. The Roadmaster had attempted unsuccessfully to contact Claimant and his crew by radio. Claimant explained the circumstances of his crew not reporting and his lead the property subject to call by the Dispatcher, whereupon the Roacmaster questioned the eight hours of pay claimed. Claimant thereupon suggested that the Roadmaster make any adjustments he deemed appropriate in the hours claimed for January 25 and the Roadmaster said he would do so. Two days later, on January 30, 1976., Claimant received a notice to attend a formal investigation into charges reading as follows= "Your responsibility in connection with your failure to perform the duties of your assignment January 25, 1976, and claiming a full eight hours of pay for performing Maintenance of Way duties on January 25, 1976."

      Fbllowj.ng the investigation, Carrier found Claimant culpable as charged aril assessed thirty days' actual suspension from service as discipline. The Organization appealed the discipline on March 4, 1976, contending that it was too severe and requesting that it be revoked and Claimant compensated for all time lost. The claim was denied at all levels of handling on the property and has been appealed to this Hoard.

      At bottom line in discipline cases Carrier must demonstrate that the accused is guilty of culpable misconduct or malfeasance. In this connection the central: question in the case before us is whether the record contains substantial


evidence that Claimant was guilty as charged. The essence of Carrier's charge is an t

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attempt to defraud or dishonestly to obtain woney under false pretenses. Careful
 examination of the record evidence persuade: us that Carrier has not carried its
 burden of persuasion on this central point. Unrefuted evidence developed on the
 property indicates that Claimant as of January ?_5, 1976, had been working the job of
 Night Crew Fbreman for only three or four days at the most. Further, the undisputed
 record shows that he had previously taken instruction regarding performance of his
 duties front the Train Dispatcher. On the night in question he exerted every reason
 able effort to contact the Roadmaster and then turned to the Dispatcher. It is
 uncontroverted that he left his phcre number and remained available for service the
 balance of his shift. Nor does any record evidence effectively refute Claimant's
 testimony that on his next work day following January 26, 1976, he reported the in
 cident to the Roadmaster and left it to the latter's judgment whether he should
 receive a full day's pay for the night in question.
 on consideration of the open, candid manner in which Claimant acted, and
 in light of the fact that he had been only four days on the job with no prior super
 visory experience, we cannot conclude that he acted dishonestly or with intent to
 defraud. Rather all of the record evidence indicates at worst ignorance of procedures
 on his part. Although such ignorance may be disconcerting and even disruptive in the
 work situation, it is not culpable misconduct sufficient to support the charges prof
 fered against him by Carrier. We should not be understood to condone proven dishonesty
 or falsification of the tithe records and we recognize the validity of the authorities
 cited by Carrier wherein discipline was not disturbed by Boards of Arbitration in
 the face o.° such proven misconduct. See Third Division Awards No. 2018?, 20031,
 20003, and 19843. But neither the direct nor circumstantial evidence presented in
 this case may reasonably lead to such a conclusion. In the circumstances, we are
 guided by other authorities cited by the Organization wherein discipline was deemed

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inappropriate because of insufficient evidence of the state of mind necessary to

 support a finding of fraudulent rniscunduct. See Third Division Awards No. 16464 and
 18594; see also 10582 and Awards cited therein. Based upon the foregoing, we are
 persuaded that the claim must be sustained.
 FINDINGS

 Public Law Hoard No.
 finds and holds as followss
upon the whole record and all of the evidence,

 1. That the Carrier and Employee involved in this dispute rare, respectively, Carrier and Employee within the meaning of the Railway Labor Act;
        2. that the Board has jurisdiction over the dispute involved herein; and

        3. that the Agreement was violated.

        AWARD

        The claim is sustained. Carrier is directed to comply with this


        Award within thirty (30) days of its issuance.


Dana E. ' s chenairvAA
0. M. Berge, Eaplayee her
Dated:

 R. W~ iege, Carrier M er