The Second Division consisted of the regular members and
in addition Referee Jesse Simons when award was rendered.
SYSTEM FEDERATION NO. 114, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Machinists)
EMPLOYES' STATEMENT OF FACTS: The carrier first employed claimant as a machinist apprentice at its Los Angeles diesel shop or. April 22, 1965. Claimant subsequently completed his four-year apprenticeship and was thereupon employed by the carrier as a machinist with a seniority date of August 2, 1969, a position he held until dismissed from service on November 19, 1969.
On September 24, 1969, claimant sustained an on-duty injury consisting of a severe flash burn to his eyes, occasioned by a welder striking an arc without first providing suitable protection for other employes working within the immediate vicinity. He reported to the carrier's first; aid facility at Los Angeles at time of injury on September 24th, and again on September 26, 1969. His regular daily assignment of hours were from 3:00 P. M. to 11:00 P. M.
Claimant requested permission from his immediate supervisor to absent himself from his work assignment at 4:05 P.M., September 20, 1969, for the purpose of obtaining further medical treatment for the eye injury sustained while on duty September 24, 1969. Permission was granted and claimant then reported to the carrier's first aid facility and, in reporting to the nurse on duty, he asked if he should report to a doctor for necessary further treatment, to which she replied in the affirmative.
The nurse was informed by claimant that he was not responding satisfactorily to medical treatment received prior thereto from the company
in the event the board should sustain the claim insofar as the request for compensation is concerned, it should take into consideration the matter of deducting the amount earned in other employment during the period involved.
The board has previously interpreted this rule providing for compensation for "wage loss, if any" as requiring deduction of outside earnings in computing compensation due. See Second Division Award 2523 and 2653.
CONCLUSION: The carrier respectfully submits that having conclusively established that the claim is entirely without merit, it 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.
This is a claim that on November 19th, 1969, Machinist C. Tow-nsend was unjustly dismissed for the reason that, contrary to Carrier's Rule 810 he was away from his post of duty for approximately an hour and a half.
It is the position of the Organization that the Claimant was unjustly dismissed, and :hat the punishment was harsh and excessive.
After full consideration of the evidence and the record in this matter, the Board is convinced that standing alone, the uncontested and basis incident and circumstances for which the Claimant was discharged, namely being absent from his place of duty, would not be sufficiently grave to warrant discharge.
However, the fact of the Claimant's absence from his post of duty, and his signing of a bizarre and untrue statement as to his whereabouts during the ninety minutes in question, when added to his previous record of misconduct, justify the conclusion that Carrier's decision to discipline him was not arbitrary or capricious.
Innumerable prior Awards have held that absent a showing that the Carrier acted in an arbitrary or capricious manner in disciplining an employe, the Board should not substitute its judgment for that of the Carrier.
However, the Board has also established by innumerable prior Awards its prerogative to question and weigh the justness of a disciplinary action in the light of whether the penalty of disci:argc was or was net excessive and