Award No. 2996
Docket No. 2713
2-L&N-CM-'5$
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Dudley E. Whiting when the award was rendered.
PARTIES TO DISPUTE
SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That under the current agreement Carman W. L. Bearden
was unjustly discharged from service on November 2, 1956.
2. That accordingly the Carrier be ordered to restore this employe to service with all seniority rights unimpaired and with compensation for all time lost retroactive to the aforesaid date.
EMPLOYES' STATEMENT OF FACTS:
Carman (Car Inspector) W. L.
Bearden hereinafter referred to as the claimant, was first employed by the
carrier as carman helper on October 29, 1922; promoted to carman on April 1,
1923, working in this latter capacity until the close of his shift on November
2, 1956.
The claimant received a letter dated September 4, 1956 from assistant
superintendent, Mr. W. T. Dudley, wherein he was charged with taking pipe
from L&N Railroad property without authority, with leaving his (claimant's)
place of assignment without proper authority, with absenting himself from
duty without permission before completing his assignment and with falsifying
his time report on August 22, 1956. The letter of September 4, 1956 (copy of
which is submitted herewith and identified as Exhibit A) further indicated
investigation would be held in the office of the assistant superintendent at
8:30 A.M. September 12, 1956.
The investigation was held on the scheduled date and a copy of the transcript is submitted herewith, identified as Exhibit B.
On November 2, 1956 Bulletin No. 75 was placed on the Decoursey, Kentucky bulletin boards and on the same date (November 2, 1956) a letter was
C6017
2996-15
615
(First Division Award 14552.)
"*
* * Our function in cases of the kind here involved, as we understand it, under awards of this Division of the Board so well known
and established that they require no citation or further consideration,
is not to pass upon the credibility of the witnesses or weigh the evidence but to determine whether the evidence is substantial and supports the charges as made. If it is we can not substitute our judgment
for that of the carrier and it is our duty to leave its findings undisturbed unless it is apparent its action is so clearly wrong as to amount
to an abuse of discretion."
(Third Division Award 5401.)
"Upon the merits, it should be stated that discipline is ordinarily
the prerogative of management and this Division does not pass upon
the credibility of witnesses, weigh the evidence, or undertake to
resolve conflicting evidence. In that connection, the rule is that we
will not disturb disciplinary action if (1) claimant has had a fair and
impartial investigation whereat his rights have not been placed in
jeopardy, (2) there is substantial credible evidence of guilt, and (3)
the penalty invoked is not in the premises excessive."
(First Division
Award 16265. )
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.
The parties to said dispute were given due notice of hearing thereon.
While there was conflicting testimony adduced at the investigation of the
charges against the claimant, there was substantial evidence to reasonably
support the decision of the carrier. Under such circumstances we may not
substitute our judgment for that of the carrier.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 3rd day of November, 1958.