The Second Division consisted of the regular members and in ad
dition Referee David R. Douglass when the award was rendered.
SYSTEM FEDERATION NO. 41, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-Electrical Workers
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Southern Region and Hocking Division)
DISPUTE: CLAIM OF EMPLOYES: (1) That under the current agreement Electrician Herbert Pence was unjustly suspended on May 8, 1954, and unjustly dismissed from the service on May 13, 1954.
(2) That accordingly the Carrier be ordered to restore the aforesaid Electrician to service with seniority rights unimpaired and paid for all time lost retroactive to May 8, 1954.
EMPLOYES' STATEMENT OF FACTS: Electrician Herbert Pence (hereinafter referred to as the claimant) was employed as such by the carrier at Russell, Kentucky. The claimant was employed as an electrician by the Carrier on 9-23-52. The claimant was suspended on May 8, 1954. The claimant was charged with insubordination and notified to appear at investigation held in the master mechanic's office at Russell, Kentucky, at 9:00 A. M., May 10, 1954. The investigation was held as scheduled; a copy of the investigation record is submitted herewith and identified as Exhibit A. On May 13, 1954, Master Mechanic Burwell directed a letter to the claimant advising him he was dismissed from the service of the carrier as of that date, a copy of which is submitted herewith and identified as Exhibit B.
The dispute was handled with carrier officials designated to handle such affairs, who all declined to adjust the matter.
The agreement effective July 1, 1921, as subsequently amended, is controlling.
POSITION OF EMPLOYES: It is submitted that the claimant was unjustly dealt with when he was suspended and dismissed from service, and in view thereof a case was instituted and progressed under the provisions of Rule 35 (a), reading as following:
There can be no question that what has already been shown was insubordination sufficient to warrant dismissal.
But Pence went even further in his insubordination? I quote again from General Foreman Sinnott's statement:
This Pence tacitly admitted. He was asked by Master Mechanic Burwell
This question to any innocent man, even though he be ignorant, would have evoked an immediate and unequivocal denial. Pence's answer was not such a denial but obviously an evasion. He said-
Nor did Mr. Sinnott's subsequent frank assertion previously quoted that Pence did make the statement bring forth any denial by Pence.
Pence knew-and so admitted-that he should have carried out his foreman's instructions and handled under the grievance rule any claim of rule violation or unjust treatment-if he felt at the time there was ground for such a claim, but he chose to take direct action.
It is well settled by your Board that the imposition of discipline in proper cases is a managerial function, and that only when the judgment of the carrier is clearly shown to have been arbitrary or capricious will this Board undertake to substitute its judgment for that of the carrier. There is absolutely no evidence that carrier's action was arbitrary or capricious, or was discriminatory or evidentiary of bad faith.
Carrier submits that on the record the claims of the employes should be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein. 2007-6 25