Award No. 8675
Docket No. SG.9071
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Horace C. Vokoun, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN OF AMERICA
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Chesapeake District)
STATEMENT OF CLAIM:
Claim of General Committee of the Brotherhood of Railroad Signalmen of America on the Chesapeake and Ohio Railway
that:
(a) Signal Maintainer E. E. Brown be reinstated to his position
of Signal Maintainer at Columbus, Ohio, with seniority, vacation, and
all other rights restored.
(b) Brown be paid for all wage loss sustained by him since his
dismissal from the Carrier's service for alleged conduct unbecoming
an employe and by coming to the Divisional Safety Meeting at Columbus, Ohio, Friday, August 5, 1955, in an intoxicated condition. [Carrier's File SG-97]
OPINION OF BOARD:
The facts are not in dispute and need not be
repeated here.
This is a discipline case where the Carrier dismissed the Claimant from
service for "conduct unbecoming an employee."
No
complaint has been made as to the procedures in the conduct of the
investigation and the subsequent handling and we therefore hold that all
procedural requirements, under all rules were properly followed.
The Carrier's representative in the Board raised a procedural question
which was not presnted or discussed by the parties when this case was handled on the property' and therefore this Board will give it no consideration.
While still on the property a discussion was had and the Organization
suggested that the Carrier return the Claimant to service on a leniency basis.
The rule that this Board has no authority to order reinstatement on a
leniency basis is well established. It is aptly stated in Award 6085.
[686]
'9675-2
6887
"There is a vast difference between the correction of 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 pro-
tect employes from arbitrary, capricious or discriminatory discipline
by the carrier. Reinstatement 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 Awards of this Board have established the principleehat unless there,
has been a gross miscarriage of justice and the Carrier has acied
m
an arbi-
trary
and
capricious manner, the Board should not substitute its judgment
.......
for
that
of the one regularly charged with the responsibilities of maintaining
order ancL-enforcing reasonable regulation
From an analysis of the record and based on the past position of the
Board in cases such as this one we find no reason for upsetting the action of
the Carrier.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the Carrier has not violated the Agreement.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 14th day of January, 1959.
T