(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 
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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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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.