The Second Division consisted of the regular members and in
addition Referee Dudley E. Whiting when award was rendered.
SYSTEM FEDERATION NO. 21, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the current Agreement Carman J. G. Hurst was improperly suspended from service August 8, 1962, and discharged from service August 23, 1962.
2. That accordingly the Carrier be ordered to compensate the aforenamed employe for all time lost August 8, 1962 to September 8, 1962, twenty (20) working days.
EMPLOYES' STATEMENT OF FACTS: Carman J. G. Hurst, hereinafter referred to as the claimant, employed by the carrier at Birmingham, Alabama, was taken out of service, charged with dereliction of duty August 7, 1962.
On August 23, 1962, the claimant was notified he was dismissed from the service of the Southern Railway Company.
Carman Hurst was permitted to return to work September 8, 1962, after losing twenty (20) working days.
This dispute has been handled with the carrier's officers designated to handle such matters, in compliance with current agreement, all of whom have refused or declined to make satisfactory settlement.
The agreement effective March 1, 1962, as subsequently amended is controlling.
POSITION OF EMPLOYES: It is submitted the claimant was subject to the protection of the provisions of the aforesaid controlling agreement made in pursuance of the amended Railway Labor Act, particularly the terms of Rule 34, which reads in pertinent part:
The discipline having been imposed in good faith without bias or prejudice, and there being no evidence of arbitrary or capricious judgment, the board should follow the principles of the cited awards and refrain from substituting its judgment for that of the carrier, which it, in fact, has no authority to do.
(b) The charge against Car Repairer Hurst was proven, and he was dismissed for just and sufficient cause. He was not improperly suspended and discharged from service as alleged
(c) There can be no showing that the discipline was imposed as a result of arbitrary or capricious judgment or in bad faith. Furthermore, carrier's action is fully supported by the principles of awards of all four Divisions of the Board.
(d) The board is without authority to substitute its judgment for that of carrier.
In view of all the evidence, the board cannot do other than make a denial award.
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.
Even if it be found that the claimant was guilty on this occasion, the employer should not have dismissed an employe with 25 years of service upon a first offense of such nature. This is the sort of conduct which is normally considered as deserving of a warning talk or reprimand the first time committed.
Accordingly we find that there was not just and sufficient cause for dismissal, as is required by the Agreement. 4714-26 617
In this award the Board has completely lost sight of the purpose for which it was created, which is-
The authority of this Board is limited to interpreting the agreement between the parties. The Board is without authority to change the terms of the agreement. It cannot change the terms of the agreement by interpretation or otherwise.
It is noteworthy that the Board does not hold in this award that the Carrier violated Rule 34 or Rule 36 of the controlling agreement, which provide for the procedure to follow in dealing with grievances. Neither does the Board hold that Carrier failed to prove its charge against the claimant or that the offense was not reasonably related to the orderly, efficient, and safe operation of Carrier's business.
What this Board did was simply to ignore the controlling agreement provisions (which it is not authorized to do) and find fault with Carrier's present operation, and then attempt to direct the Carrier's future operation.
The Board should follow the principles of many prior better reasoned awards and refrain from attempting to substitute its judgment for that of the Carrier, which, in fact, it has no authority to do.