The Second Division consisted of the regular members and in
addition Referee Dudley E. Whiting when award was rendered.
SYSTEM FEDERATION NO. 72, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Firemen & Oilers)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the current agreement, Laborer Robert H. Powell was unjustly discharged effective September 21, 1963
EMPLOYES' STATEMENT OF FACTS: Laborer R. H. Powell, employed as such by the carrier, with a seniority date of June 28, 1926, without any discipline record before being dismissed.
Hearing was held on September 4, 1963 in connection with the claimant's alleged theft of ice from ice car at Communipaw Engine Terminal on August 17, 1963.
Dismissal notice was directed to the claimant, dated September 17, 1963, by Manager W. F. Daley, Engine Terminals, Central Division.
The dispute was handled with carrier officials designated to handle such affairs who all declined to adujst the matter.
The agreement effective June 1, 1937, as subsequently amended, is controlling.
POSITION OF EMPLOYES: It is submitted that the claimant with 37 years service, with a clear record, was unjustly dealt with when dismissed effective September 21, 1963, and accordingly, the dispute was progressed in accordance with Rule 10, reading, in part, as follows:
Also see Second Division Awards 1694, 2484, 3590, and Third Division Awards 8808 and 9214.
In addition to the foregoing conclusions, the carrier states that the claimant's length of service is not a proper ground for questioning the propriety of dismissal. In this connection, see the opinion of the board in Third Division Award 9422 which reads, in part, as follows: "The Board may inquire into the propriety of the discipline only in the event of extenuating circumstances. Award 4622 (Carmody). The length of service of an employe is put forward as an extenuating circumstance. While this has been considered a factor in some cases, e.g. Award 6104 (Messmore), it is not an extenuating factor `in and of itself,' Awards 6108 (Messmore) and 5026 (Parker)."
The discipline given Mr. Powell was assessed in good faith by this carrier. The entire record would indicate that there has been no abuse of discretion, and submits the claim is without merit and should be denied in its entirety.
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 right of the Carrier to discipline the claimant under the conditions involved is beyond doubt. We have consistently held that a carrier's disciplinary action can successfully be challenged before this Board only on the 4715-6 6 23
ground that it was arbitrary, capricious, excessive or an abuse of managerial discretion. However, the evidence on the record considered as a whole has convinced us that the claimant's dismissal, considering his long service with this carrier, under those circumstances, is an unreasonable exercise of the carrier's responsibility.
It is not possible to sustain any claim for compensation and the reinstatement awarded should be considered as tantamount to a warning that similar conduct will result in just cause for discharge.
Mr. R. H. Powell shall be reinstated to his former status as an employe with seniority unimpaired, without pay or other monetary benefit for the time lost since his dismissal, such time to be treated as a disciplinary suspension.