(Advance copy. The usual printed copies will be sent later.)
i
"orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
6364
SECOND DIVISION Docket No. 6193
2-SOU-CM-'72
The Second Division consisted of the regular members and in
addition Referee Irving R. Shapiro when award was rendered.
( System Federation No. 21, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Southern Railway Company
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Dispute: Claim of Employes:
1. That under the current Agreement, Carman J. C. Jenkins, Coster
Shop, Knoxville, Tennessee, was improperly discharged from service
October 15, 1970.
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2. That accordingly, the Carrier be ordered to restore Carman J. C.
Jenkins, Coster Shop, Knoxville, Tennessee, to service and be paid
for all. time lost beginning October 16, 1970 and be granted all
other rights and benefits due under the controlling agreement.
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'i nd ings_
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 i
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.
Parties to said dispute were given due notice of hearing thereon.
Rule
34
of the controlling Agreement reads in part as follows:
"An
employee will
not be dismissed without just and sufficient
cause or before a
preliminary investigation,..."
The
claimant herein admitted committing assault and battery upon his
supervisor. In Awards too numerous to cite, this Board
has held that such conduct
constitutes just
and
sufficient cause
to terminate an employe.
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The Petitioner
seeks
as exception from the
above
stated sound and well
established concept by alleging that the claimant was provoked into ccamfitting the
I
uunishable
acts. Except for the claimant's
own subjective
responses
to
the cir
f =stances on the night of October 15, 1970, the record herein fails to support
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I
I
Form 1 Award No.
6364
Page 2 D
93
2- OU-CM-'72
.
this allegation. It further charges that the Carrier failed to sustain the full
basis upon which it
removed the
claimant
from
service, namely;" insubordination, ...
and
immediately leaving the premises without
regard for the welfare of your supervisor etc."., in addition
to the admitted. attack and physical violence coninitted.
The Carrier is only required to establish that
it had just cause
to separate
claimant from its service. Even if it
could be
held that it did
not
present substantial
evidence to sustain those
charges, it would
be imaterial, the record
being sufficient to support a meaningful ground for the action taken.
As to the Organization's
plea that the penalty was excessive, con
sidering the
claimant's seventeen
years of service, we reassert the holding of
all divisions of the National Railroad Adjustment Board which were best summarized
by Referee Whiting i$ Third Division Award No. 60$5 as follows:
"There is a
vast
difference between the correction ®f an excessive
penalty and reinstatement on a leniency basis. We can correct an
excessive
penalty because the imposition of such a penalty is a
violation of those provisions of the agreement which are adopted
to
protect employes from arbitrary, eapric6fts or discriminatory
discipline by the carrier. Reinstateaent
on a, leniency basis is a
discretionary remission
of an appropriate penalty. We do not remit
penalties on a leniency basis because
we have no
power or right to
exercise managerial discretion."
The Claimant having been afforded a fair hearing, the record indicating
substantial evidence
to sustain a finding of
just cause for
dismissal and the
penalty imposed was not
arbitrary, capricious
or an abuse of discretion we will not
reverse the determination by the Carrier. (see Awards
1323 3092, 2087, 2769,
3874, 4000, 4001, 4089, 4132, 4195, 4199, 4693, 6196, 621+0
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Executive Secretary
Dated at Chicago, Illinois, this 26th day
of September, 1972.