Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7+23
SECOND DIVISION Docket No. 7350
2-MKCSJA-CM-`77
The'Second Division consisted of the regular members and in
addition Referee James C. McBreaxty when award was rendered.
( System Federation No.
3,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (C armen)
( Milwaukee-Kansas City Southern Joint Agency
Dispute: Claim of Employes:
1. That the Milwaukee-Kansas City Southern Joint Agency violated the
controlling agreement when it improperly suspended Cayman Bobby
Ray Smith from service fox five (5) days from January 23, 1976
through January 27, 1976, as a result of investigation held on
January 13, 1976.
2. That accordingly the Milwaukee-Kansas City Southern Joint Agency
be ordered to compensate Caiman Bobby Ray Smith fox all time lost
during the period of suspension. '
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 ox employes involved in this
dispute axe respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute:
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Numerous prior awards of this Board set forth our function in discipline
cases. Our function in discipline cases is not to substitute our judgment
for the Carrier's, nor to decide the matter in accord with what we might
ox might not have done had it been ours to determine, but to pass upon the
question whether, without weighing it, there is substantial evidence to
sustain a finding of guilty. If that question is decided in the affirmative:,
the penalty imposed for the violation is a matter which rests in the sound
discretion of the Carrier. We are not warranted in disturbing Carrier's
penalty unless we can say it clearly appears from the record that the
Carrier's action with respect thereto was discriminatory, unjust, unreasonable,
capricious or aribtrary, so as to constitute an abuse of that discretion.
A review of the testimony by Carrier's Assistant Trainmaster, Carrier's
Yardmaster, and Caiman R. R. Neidermeyer, indicates that the 45-minute
F orm 1
Page 2
Award. No. 71+23
Docket No. 7350
2-MKCSJA-CM-`77
delay of Train No. 81 can be attributed to fact that Claimant had not
okayed No.
6
rail until
x+:55
A. M.
Claimant attempts to justify this delay by stating that he had to
close the doors on three (3) boxcars with a "pull" jack or "coffin" jack.
However, Carrier's Assistant Trairzmaster testified that the only tools he
remembers Claimant carrying were "his light and packing iron."
The record before us indicates that substantial credible evidence has
been presented to support Carrier's conclusion of Claimant's guilt.
Carrier's penalty was, therefore, not discriminatory, arbitrary, or
capricious. Moreover, the penalty was not unreasonable, particularly in
light of the fact that two (2) of the five
(5)
days of Claimant's suspension
were his rest days, and thus Claimant suffered no monetary loss on those
two (2) days. Consequently, we must deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMEIVT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
J~.~rI.,
l
os sarie Bxasch - Administrative Assistant
Dated a Chicago, Illinois, this 9th day of December, 1977.