NO. 1844
PARTIES TO
DISPUTE

 Brotherhood of Maintenance of Way Employes

Chicago and North Western Transportation Company

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



AWARD No. 68

 CASE NO. 82

 OPINION OF BOARD:
 Claimant R. A. Diamond was employed by Carrier as a track laborer in the section gang at Council Bluffs, Iowa. His regularly assigned hours ware 7:30 A.M. to 4:0a P.M., Monday through Friday, with thirty minutes fox lunch. On Thursday, November 16, 1978, Claimant was working under Foreman Wenninghaff, operating a Tractair. At approximately 10:00 A.M. Claimant left his assignment under circumstances in dispute in this case. He was subsequently encountered in a nearby tavern. at about 3:20 P.M. by Roadmaster A. C. Wilson and General Track Inspector S. Ranges. At that time Claimant was drinking a beer.

 On November 17, 197$ Claimant was notified by Carrier to appear far an investigation into
 "Your responsibility in connection with your actions when you were at the Dirty Thirties Bar, Avenue G, Council Bluffs, Iowa at 3:20 P.M. on November 16, 1978 in violation of Rule G of the General Regulations and Safety Rules effective June 1, 1967." As a result of this investigation, Claimant received notice of dismissal as of December 15, 1978. As in the companion case No. 83 (Award No. 67), the validity of the Rule G violation turns upon the validity of Claimant's absence from duty. Unlike the Claimant in Case No. 83, Mr. Diamond did not ask or receive explicit permission from his foreman to be absent. He did inform the foreman of his desire to leave and in the absence of direct response "assumed" that he had received permission. We cannot determine with reasonable certitude that Claimant manipulated the situation. Several witnesses support his view that he believed, albeit erroneously, that he also had permission to leave. At best, however, Claimant was careless and indirect to the point of negligence in seeking permission to be absent. He was not without culpability on this occassion, but in the circumstances, the penalty of dismissal is excessive. The discipline will be reduced to 50 days' suspension without pay. Accordingly, he will be returned to work effective February 16, 1979 with back pay and benefits from that date forward.

 FINDINGS:
 Public Law Board No. 1844, upon the whole record and all of the evidence,
 finds and holds as follows:
 1. That the Carrier and Employe involved in this dispute are,
 respectively, Carrier and Employe within the meaning of the
 Railway Labor Act;
2. that the Board has jurisdiction over the dispute involved

 herein; and

 3. that the penalty imposed was excessive.

 The claim is sustained to the extent indicated in the Opinion. Carrier

 is directed to comply with this

 Dana E. Eischen,

 within thirty daps of issuance.

 H.G. Harner, Employe Member

 dated

 chmiepe, Carrier member

 d w0, 4 do