PARTIES Brotherhood of Maintenance of Way Employees
 TO and
 DISPUTE Southern Pacific Transportation Company (Pacific Lines)
 STATEMENT "1. That the Carrier assessed discipline- which is excessive and unduly
 07-CTA IM harsh and in abuse of discretion when it dismissed Track Laborer D.M.
 Barreras from its service subsequent to the formal hearing held November
 9, 1979 in which he was charged with allegedly being in violation of
 Carrier's Rule M-810 (absent without proper authority).
 2. ThAt Track Laborer M.D. Barreras, now be reinstated to the Carrier's
 service with seniority and all other rights restored unimpaired and
 that he be paid for all time lost as a result of his wrongful dismissal,
 and that his personal record be cleared of the charged placed thereon."
 FINDINGS

 Upon the whole record, after hearing, the Board finds that the parties herein are Car-
 rier and Employees within the meaning of the Railway Labor Act, as amended, and that
      ,

this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.

 Claimant was charged with failure to protect his assignment an a continuous basis and also with being absent from duty without proper authority on October 23, 1979. Following an investigation, by letter dated December 6, 1979, he was dismissed from service. The record of the investigation reveals,without conflict, that Claimant had been absent on a number of occassions and tardy on a number of others. The record also indicatesthat a number of the dates on which he is charged with being absent, he notified someone at the headquarters that he could not report to service due to mechanical problems with his automobile. On a number of the other dates involved, Claimant did report a few minutes late but was denied the days work because of that tardiness even,though his gang had not left the headquarters point. It is also noted that employees in gangs such as that which Claimant was in, are paid on an actual minute basis.
                                                ~U3q-3o


                            -


There is no question but that Claimant was guilty of the charge as propounded by Carrier. The evidence is clear and his own admissions support that conclusion. There is however, one mitigating circumstance which must be taken into consideration. Claimant testified, without rebuttal, that he had some serious problems with his foreman which involved his foreman abusing him and also provoking his absences by the foreman's conduct towards Claimant in front of the entire gang. While it is clear that Claimant had recourse through the grievance machinery of the Agreement to handle this problem, it is surely an element which must be considered in assessing the discipline imposed. It is also noted that Claimant began his service with Carrier approximately eight years prior to the incident herein.

 With some reluctance the Board must conclude that Carrier's discipline in this case may have been somewhat arbitrary under the circumstances and in view of. Claimant's service. It is the Board's view that Claimant obviously must conform to the attendance standards which Carrier must expect from its employees. However, under the circumstances herein, it is the Board's conclusion that Claimant should be reinstated to his former position with all rights unimpaired but without compensation for time lost. Thus, the time out of work shall be considered a disciplinary layoff with respect to the infraction involved in this dispute. An additional caveat must be clearly understood in that this must be construed to be Claimant's last chance. If his attendance is not satisfactory he certainly should not be given a pass by Carrier and may not expect to continue his employment under that circumstance. Thus, Claimant must report for work on a normal basis with the same expectations as any other employee in order to retain his employment. It is with that understanding only that he shall be rein- - stated to his former position. AWARD
          Claim sustained in part; Claimant shall be reinstated to his former position with all rights unimpaired but without compensation for time lost.


ORDER
          Carrier ~hrll comply with tte Award herein within thirty ('i0) days from the date hereof.

~U3G-3~

                  I.M. Lieberman, Neutral-Chairman


L. . Scher ing, Carrie$ Member .E. Fleming, mp eyee lember

 January ze. , 1981
 San Francisco, CA