COPY
Oi,G. FILE 8-26 AWARD N0. 1
 CARRIER FILE R-12049 CASE N0. 1
 NRAB FILE CL-8249

PARTIES The Brotherhood of Railway and Steamship Clerks,
 Freight Handlers, Express and Station Employes
 TO

 DISPUTE St. Louis, San Francisco and Texas Railway Company

(1) The Carrier violated the terms of the Agreement between the parties in its treatment of steno-clerk, Mrs. Alpha E. Odom, Ft. Worth, Texas when on October 30, 1954 she was dismissed from the service of the Carrier without just cause.

 (2) Mrs. Alpha E. Odom now be reinstated with all rights unimpaired and be reimbursed for all monetary losses sustained at the rate of the position occupied on October 30, 1954.

The Carrier and Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act as amended.

Claimant was dismissed from service October 30, 1954 after investigation held on October 28, 1954 upon a charge in writing dated October 25, 1954 which read:

The charge was based upon Rule 702 in the Book of Rules of the Transportation Department which, so far as pertinent, reads:





On October 20, 1954, Claimant had been notified to appear on October 25, 1954 for investigation on the same charge. She appeared with an attorney. The Carrier official designated to conduct the hearing refused to hold the investigation upon the ground that the attorney was neither an employe nor a duly accredited representative; and the charge was accordingly re-noticed for hearing on October 28, 1954, at which time Claimant appeared with a duly accredited representative who made objection that Claimant had been denied the right to have her attorney present at the investigation.

 Claimant9s representative also made objection at the hearing on October 28, 1954, that she had not been furnished with the transcript of a previous investigation upon the same charge held five months before on May 6, 1954. Claimant was represented at both investigations, the one on May 6 and the one on October 28, by the same accredited representative. There is-no evidence of any request for the May 6 transcript-until November 6, 1954, which request the Carrier complied with on November 19, 1954. At the May 6 investigation on the same charge, Claimantts-attention was called to Rule 702 upon which the charge-was based. Moreover, the record also contains a bulletin dated February 5, 1952, addressed to all clerical and other employes requiring them ptto be familiar with and to conform toll the Book of Rules and stating where they would be made available. It is established by the evidence of record that Claimantfs pressing financial obligations were then discharged by means of a Credit Union loan. The only action taken by the Carrier as a result of the May 6 investigation was a warning in writing on May 10 the receipt of which Claimant acknowledged in writing the same day.

 The investigation and hearing held on October 28, 1954, was based upon occurrences subsequent to May 6, 1954.

 First. There is evidence of record by way of excuse for the financial con
 dition in which Claimant found herself; and the Organization petitioned for
 consideration of the case on a leniency basis which petition the Carrier denied.

 The Carrier now contends that a petition for consideration on a leniency basis is a confession of the validity of the dismissal and that this Board therefore lacks authority to act on-the claim in view of Third Division Award 6085 and First Division Awards 5300, 12503, 73052, 14421 and 14468. But we are unable to conclude upon the evidence of record that the Organization ever abandoned Item 2 of the claim and the case is therefore properly before us on the merits of the dismissal.

 Second. The charge and the penalty assessed are sustained by the evidence of
 record.

 The transcript of the May 6 investigation was relevant to show that Claimant was then put upon notice of Rule 702 in addition to the notice imparted by the 1952 Bulletin; and it was also relevant upon the issue of appropriate penalty. Claimantps right to a copy of the transcript of the May 6 investigation is based upon Rule 29 which puts an obligation on the Carrier to furnish such a copy to the duly accredited representative

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              9eupon request for use in handlin, case on appealOt


      No appeal-was taken from the action taken by the Carrier on the May 6 investigation; and, when the first request was made by the accredited representative for a copy of the transcript later, the Carrier complied with the request.


      Claim is made that the offense charged is not sufficiently serious to justify dismissal from service. 'There are certain types of offenses, such as assaulting passengers or patrons, that may justify dismissal, rule or no rule. Other types of less serious conduct may be made the subject of a specific rule, such as this one, which constitutes advance~notice of the Companyps personnel requirements. By posting the 1952 Bulletin, the Carrier put its employes on notice that the type of conduct described in the Rule is ground for dismissal. Moreover, in this case the dismissal was preceded five months before by a prior charge and warning.


      Ue are unable to conclude that the Rule, or the manner in which it was enforced, were unreasonable or arbitrary.


      Third. Various claims are made that Claimant was denied a fair and impartial

      hearing.


              Rule 26 provides that at an investigation an employe may be represented


              SPby an employe of his own choice or one or more duly accredited representatives.R


      It is settled that carriers and employes under the Railway Labor Act may negotiate a rule which limits the representation that an employe may have (First Division Award 15575 citing Butler v. Thompson, $ air., 192 Fed. (2d) B31). Under Rule 26 Claimant was not entitled to be represented at the investigation by her attorney who was neither an employe nor an accredited representative.


      Claim is also made that a written report made by a Special Officer of the Carrier was received in evidence at the hearing and that the Special Officer was not called as a witness and offered for cross-examination. The written report was mainly confined to facts,of judicial record, the substance of which was not denied by Claimant. Moreover, the record of the investigation does not show any demand for the production of the Special Officer for cross-examination, although Claimant requested the right to produce another witness and this was done.


      Upon a review of the entire record we are unable to conclude that Claimant was denied a fair and impartial hearing at arty stage of the proceedings.


                            A If A R D


                          Claim denied.


      /s/ Hubert T7vckoff I dissent.

      /s/ T. P. Deaton Chairman Isl F. H. Wright

      Carrier Member - Employe Member

      Dated at St: Louis, Missouri,

      November 14, 1957. - 3 -

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DISSENTING OPINION OF EMPLOYE MEMBER:

 Employe Member dissents from the findings and conclusions of the majority in that I do not feel due consideration was given to facts and circumstances, as contained in the written record which would sustain the charge on which Mrs. Odom was remoo-ed from service and further that even if sustained it would hot justify the extreme penalty which the Carrier had at its command.

                              Isl F. H. Wright

                              Employe Member