Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9165
 SECOND DIVISION Docket No. 9245
 2 -CMS t P&P-EW - ' 82
 The Second Division consisted of the regular members and in
 addition Referee Albert A. Blum when award was rendered.
 ( International Brotherhood of Electrical Workers
 Parties to Dispute:
 ( Chicago, Milwaukee, St. Paul and Pacific Railroad Company

 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.

The Claimant, Electrician John A. Erkins, was dismissed from service for absenteeism, tardiness and failure to protect his assignment on September 24, 1979. He had entered the service of the Carrier on March 3, 1978. The Claimant was reinstated on January 28, 1980 on a leniency basis with full seniority rights but with no back pay.

 The Organization first argues that the dismissal was "arbitrary and capricious". It claims that on all of the dates on which the Claimant was absent, arrived late, or left early he had a sound reason for the action. Moreover, he had notified the Carrier of the reason by telephone or in person. The Organization also charges that the hearing was not fair or impartial because of some of the questions asked and because the charging officer, the hearing officer, and the reviewing officer were either the same person or were father and son. In addition, the Organization rejects the leniency settlement as not binding on the Organization in that it was agreed to by the Carrier and the Claimant and the Organization was not involved in it. The Organization consequently believes that the Claimant still deserves back pay and other benefits for his time lost. The Organization also argues that since the Carrier chose to reinstate the Claimant, the Carrier, consequently, admitted that it was in error in originally dismissing the Claimant.
 Form 1 Award No. 9165
 Page 2 Docket No. 9245

The Carrier, on the v.ner hand, notes that the Claimant was absent eight days and only notified the foreman twice (a violation of Rule 16), had left work early twice and had arrived late twice -- all between July 12, 1979 and August 13, 1979. Moreover, the Carrier says it had warned the Claimant about his past attendance record. The Carrier believes that past awards support its decision to terminate the Claimant.

 The Carrier also points out that past Board awards have ruled that leniency given a Claimant is not an admission of guilt on its part. In addition, previous Board rulings further declare that leniency settlements with an employe are binding regardless of the wishes of the Organization.

 All of the arguments on both sides become moot if the leniency agreement which no one denies was accepted and signed by the Claimant and the Carrier, though challenged by the Organization, is binding in this case. In a similar case (Second Division Award ~,To. 4555, Referee P. M. Williams the folio-caing Board Awards are cited



Award: Claim denied."

 "Fourth Division, Award No. 1392,

 From the above it appears that this dispute ::as been finally settled on the property and that there is nothing for this Board to determine. It appears that the controversy was ad4usted on terms satisfactory to the Claimant and there is no contention that he did not act freely and voluntarily. See Award 983 of this Division and Award No.s 54;05, 11762, 13958, 15019 and 16675 of the First Division.

 Award: Claim dismissed."

 "Special Board of Adjustment No. 383, Award 17, Case No. 20.4,

 XXX Claimant accepted an offer made to him by the Carrier of reinstatement to his position solely on the basis of managerial leniency, with the express understanding that no claim would be progressed or payment for wages lost as a result of his dismissal. This agreement was made between Claimant and Carrier without prior notice or approval to or by the BRT.
 Form 1 Award No. 9165
 Page 3 Docket No. Cr245
 2-CMStP&P-EW-' 82
 Under similar circumstances, Divisions of the National
 Railroad Adjustment Board have held that such agreements
 are binding and conclusive of the claim-`.-'-,.:
 Award: Claim denied."



In t:'le present case, there is no evidence th-al- t1.he Cagier tD,rk adv nta-e of the C laim~ant. It is alsc true that the Cr.anization did not object to the Carrier dealing with the Claimant until after the settlement ;Vas reached, But it also appears, from the record, that the Organization was not infoIMed of -aizatever negotiations were going on between the Claimant, the Carrier and- the State of Wisconsin Equal Rights Division. Moreover, the agreement signed by the Claimant did not waive his rights to pursue his claim through the Railway Labor Act but only through the State of Wisconsin Equal Rights Division. Thus, as stated in the. settlement agreement, the Claimant agreed in exchange for the leniency reinstatement "not to institute a law suit under Title VII of the Civil Rights Act of lc,-" ..., based on ERD Charge No. 70,05815 filed with the State of Wisconsin, Equal Rights Division and agrees not to process the charge_ any further." (Emphasis added.; The charge he agreed not to process further was the ERD charge.

 Because the Organization was not adequately informed of what was taking place and because the evidence indicates that the Claimant did not waive his rights under the Railway Labor Act, the sound guidelines spelled out in Second Division Award :,,To. 4555 have not been met and the leniency agreement is not binding in this case.

 Surely, however, past Board awards and sound industrial relations practices require that any offer of settlement by a Carrier should not imply a presumption of its guilt. In this case, such a presumption of Carrier guilt is even less sound given the fact that the Claimant signed the agreement. In fact, the only assumption that the Board can reach is that both the Claimant and the Carrier thought it a just settlement.
 F orm 1 Page

 Award No. 9165
 Docket No. X245
 2-COMPOP-EW-'u2

 And < ~"st, nonYvarisniratcry, and reason^hle settlement it was - given substantive evidence supporting the Carrier's charge that the Claimant had
 excessive absences and had not protected his assignment. (See, for example, Second Divisicn Award 7325 - ?tcBrearty .)

 "Numerous prior awards of this Board set forth our function in discipline cases. Our function in discipline cases is _not to substitute our judgement for the Carrier's, _nor to decide the matter in accord with what we might: or might not have done had it been ours to determine, but to pass upon the question whether, without weighing it, there is _substantive evidence to sustain a finding of guilt. 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 Carrieris penalty unless we can say it clearly appears from the record that the ~!~ Carrier's action with respect thereto t:-as discriminatory, w-just, unreasonable, capricious or arbitrary, 57 as to constitute an abuse of that discretion."

 The Claimant, w`?O had b2°n in service for only one and one-half years, was absent eight times and tardy or left early four times within a two month pericd. The Claimant, in the majority of the absences, offered no proof of why he ;a<?s aDS[.i't, could not name specifically ,._'_o:'. he called 1. the C?.i_ _.-.'_r ,:1 nd .:ad no proof that he made such a call.

 1iCreCV'er, L?t:wever, it might look on the surface when tile Carrier used so aw.nt- people with the same last name in the hearing process ''Nielsen and Bidlingmoyer, twice), there 7.5 n0 evidence that. these proceedings w°r2 unfair. Civen all of the
above, there is nc reason ~~ ___, the Board should disturb the Carrier's dacision,

 A W A R D

 Claim denied.

 Attests Acting Executive Secretary

NATIONAL RAILROAD ADJ USKENT BOARD

By Order of Second Division,


tose:narie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 30th day of June, 1982.