Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8956
 SECOND DIVISION Docket No. 9133
 2 -MP-CM-' 82
 The Second Division consisted of the regular members and in
 addition Referee Edward L. Suntrup when award was rendered.
 ( Brotherhood Railway Carmen of the United States
 Parties to Dispute: ( and Canada


Dispute: Claim of Employes:




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.

Claimant, Mr. R. B. Reyna, is a Carman employed by the Missouri Pacific Railroad Company. At the time of the instant case Claimant was working the 7:00 A.M. to 3:00 P.M. shift at the Carrier's Freeport, Texas facility.

 Claimant was assessed a 60 day actual suspension to run from July 26, 1979 to September 23, 1979 after a formal investigation which was held on August 3, 1979. This investigation dealt with the following Carrier charge, as issued to Claimant by letter on July 25, 1979:

Claimant was suspended the day after the alleged charge, prior to the investigation, because Carrier invoked Rule 32 (a) of the controlling Agreement which provides that "in proper cases" an employee may be held out of service pending an investigation which must be held promptly. The Board finds that the Carrier did not contravene its authority in applying, in this case, Rule 32 (a).
 F orm 1 Award No. 8956
 Page 2 Docket No. 9133
 2-MP-CM-'82

 The main issues of substance in the instant case are twofold: (1) is there substantial evidence that Claimant broke Rule 17 of the Agreement, and (2) if such be the case, whether the discipline assessed was excessive.



A complete review of the record shows that Claimant did leave the job on or about 8:00 A.M. on July 25, 1979, that he did this without the explicit permission of the Head Carman, that the Assistant General Car Inspector was not apprised of the alleged reason for the Claimant's departure from work on that day until the day after, that the existence of the alleged reason for leaving i.e. illness, has never been proven, and lastly, that testimony at hearing suggests that Claimant did not want to work on the morning of July 25, 1979 because it was raining. There may well have been a relationship between an illness Claimant felt and the fact that he did not want, and/or had good reason not to want, to go into the rain on the day in question. This is hypothetically possible. But this remains, on the record, unproven,

 It has been established in many prior awards by this Board that it does not presume to substitute its judgment in discipline cases for that of the Carrier (See recent Second Division awards 8308, 8322, 8326) when charges are proven, and there is substantial evidence in this case to support the fact that Rule 17 of the Agreement was broken. Nevertheless, the Board has justifiably reduced a penalty if it was considered to be excessive in view of the facts of the case before it and in view of the principle of progressive discipline.

 In the present instance, the Claimant has no past record of occupational malfeasance with the instant Carrier. On the contrary, he had a good work record for the some three and a half years he had been employed by the Missouri Pacific Railroad Company prior to this incident.




                              By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 :By y_
 osemarie Brasch - Administrative Assistant

      Dated at Chicago, Illinois, this 3rd day of March, 1982.