f:=~i-rTTL,9 - - Brotherhood of Maintenance of Way Employes
 .-. and _
 I rlSl; L115, - Lsurlinoton Northern Railroad Company

 t:IATf_MFNT "1. The Carriar violated the Agreement whenremoving -_
 r1l'JL~LLlt·I° C . F. Taylor from service Fcbruarv 19, ?''
 __._.____ 4,4- 26 and March 1, -2. -, 4 and .`r. 198Cpend--
 lna investigation.
 .'. That Claimant S. F. Taylor be allowed eighty-eight
 nours straight time pay at his renular rate of pay
 plus fifteen days' meals and linen allowance -at
 85.45 per day."

Upon th::· whulc record, after hearing, the hoard finds that the parties -h,crvan .are Carrier-and Employees within the meaning of 1 hr RAa lwav Labur Acl, Ps amended, and that this Board is duly lunstztuted under Public t-aw 80456and has jurisdiction of the lr artie6 and tire sublec t matter.


1 hr-. record rave: als that Claimant was removed from service- on f eebruarv t9, 198'.pending -an - investiaation which was held oar February '<6, 1982. The transcript of that investigation was n"_Pr made: a°_ the tapc in which the procendino-was reworded was defective. After -numerous attempts -made to retrieve the


testimony, it was determined that. no transcription could bemadc·
 and b8sed on this fact, no discipline was assessed. The record
 also :iwdic.ates, however, that a prior series of investigations
 hard been held ors February 9, 193and Claimant had been found in
 vinlataon r,i :o number of Carri-er-'s rulbsand was notified on
 Ma rt;h ::i. 1.982 that. as a result of those violations which were
 o~tabt fished by the February Et investiqation he was dismissed from
 __.rvice, This dispute, therefore, deals only with the period
 from February 1'i., at, which tame he was removed from service -until
 March i , .1.902 when he was dismissed. --

"Iw facts an this matter are not in dispute. Carrier alleges that this was as very questionable employee with a very bad record and that, no pay should be awarded under these particular



circomstances and- in view of his ultimate dismissal. Carrer
 also notes. that there is no compensation due for e;;penses under -_
 Rule 140, Section C7 dealing with unjust discipline. That section
 provides as follows:

            "If it in tound that an employee-has been unjustly disciplined or dismissed-, such discipline shall

            be set aside and removed from the record: He -

            ,hall b< reinstated with his seniority rights utn

            ,mppired and beg compensated for wage loss, if any,

            nuf4ered by him resulting from such discipline or _

            -."spensi on .


Carrier know=, that there is obviously no provision-for a per= them

                                                  3U bo- tag

allowance or other expenses -intended to compensate an employee WAlvr ttw rule cjtpd above. More-importantly, Carrier maintains that the record which Claimant had amassed with respect to his attendance dial not warrant full compensation for the period ire qoez-t.xon. Carrier maintains that Claimant made his own work; record and should be made whole only to the extent that it could be prosumed that he had worked during the days -in question. -


PptitAoner arquos that -Carrier t-ices conceded that its procedural
 errors resulted in the particular- impanhe-herein and that it w«s
 :,.n erroi. Carrier nsade no effort to correct its -mistaW by
 romperisoting Claimant for the time lost as a result of Carrier's
 m? s f akys. The Orgaanizalion argues that Carrier must comply with
 the schedule rules and in this instance must compensate Claimant
 for the time: lost as well as the per-di-em_ _

 First it must be noted as the Board has examined the facts -in
 this matter_ that there- is -no basis whatever for a claim of
 -expenses or per-di*m a_, is- specified in the claim. At also must:
 heP no+k-·d in y,m >·>inn that the fact. of Claimant's dismissal. has no
 hearing on the dispute herein since-that matter- is the subject. of
 ,her claim=. and ha=_. no direct relationship to the withholding
 From service which is at issue .in this matter. -

                                                  3`I bn

                                            -4-


The Board is convinced that: Claimant was- unjustly deprived of
 Conipe:insat.ion for wage loss suffered as the result of Carrier.°s
 mistakes. Thp only problem is, - Would-the bald approval of the
 claim result in unjust enrichment. In this particular case the
 Board believes that .it would. Without attempting to establish
 v",~ r-.r(_·_4 principles or orpcodents, and based or, W the facts of this
 anoe alone, it is evident that Claimant's work record has -a
 bearing on the amount of loss -which-he-indeed realistically
 systained. In fact, a=; has been established in other matters. -
 -he Claimnt made and established his own work record. (See- Award
 No. :-., Public Law Board 11:;:5 and Award No. 1443, Public Law Hoard -
 20=a=?.) The Board believes that in terms of an equitable solution
 Lu the problem and to avoid any improper payment to Claimant,
 thr·r v must he some: mitigation of the loss which he sustained as
 ii. relates to his prior work record. Therefore the amount
 claimed by the Organization in this instance shall be modified to
 farce e_tunt that the averagc-_ work record of-Claimant, that is, the
 percentage of scheduled days which - he worked during the
 immediately preceedi_ng---1^ months will be applied to the amount
 claimed 10 thin i.n s+anLe, - Which- shall become the amount of
 compensation for his wage loss.

 3if(op-(otb
 -5-

            Claim sustained in part. Claimant shall not be compensated for any expenses AncurrAd during- _ the period in ouestion. He shall be compensated for time lost during the lays claimed. - mobi f aed ire accordance with the findings above.


Ul=;LiE R
            Carrier wily. comply with the Award herein within thirty (_'.U) days from the date hereof.


1. M. Lieberman. Neutral-Chairman

 W. Hadynskv"~ h. H. Funk,
 Carrier Member Employee Member

 St. Paul., Minnesota

        1988 -


34b0-(o`a