The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
See also Awards 13098 and 13099, First Division; Awards 5467 and 5819, Second Division; and Award 6962, Third Division.
Assuming, without conceding, that the claimant was improperly dismissed from ,service, he is only entited to be restored to service with his seniority rights unimpaired and the difference between his actual earnings and what he would have earned had he not been dismissed. Nothing more.
The company has shown that this was a "proper case" for suspension pending a formal investigation because the claimant's threatening actions and belligerent attitude evidenced potential violence if the claimant remained on the job. The company has shown that the claimant received a fair and impartial hearing which was not prejudiced by the reviewing of the employe's past record by the hearing officer.
The company has also shown that the claimant was guilty of several serious offenses, among which were: using abusive language about a superior; threatening a superior; absence from work without permission; refusal to permit his superior to leave the office; and refusal to obey his supervisor's instructions to leave the premises. The company has shown that while there was a conflict in the evidence addaced at the hearing, this conflict was resolved by the hearing officer in favor of the supervisors. The Board should not substitute its judgment for that of the hearing officer because he was at the investigation and was in a better position to determine who was telling the truth. Furthermore, thh company has shown that the Board should not substitute its judgment for that of the company unless it can be shown that the company was arbitrary, capricious or unfair: a contention which cannot be supported b3- fact.
Finally, although the company has shown that the claimant was guilty of severe misconduct and deserving of the discipline assessed, the company has shown that even if he should be reinstated, at most, he would only be entitled to net wages lost. Any monies earned during the period of dismissal should be deducted from the amount he would have earned had he remained in the service. There is no provision in the agreement for interest or any of the other monetary considerations claimed.
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 iii this dispute are respectively carrier and employe vrithin 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 disciplinary case, in which after being properly charged, claimant was afforded a hearing, found guilty and ordered to be dismissed from the service of the Carrier. He is now appealing that decision.
~'·e have reviewed the transcript of the hearing and it is our conclusion that there is more than substantial evidence for the finding of guilty. Nor do we in this case, believe that Carrier's decision to dismiss claimant from its service eras either arbitrary or capricious. We will deny the claim.