The Record reveals that Grievant had a full and complete hearing; that he and representatives of his own choosing participated therein; that his right of cross-examination was not restricted; and that he had ample opportunity to present testimony, evidence, and argumentation in his behalf.
The charges against the Grievant were supported by the testimony of only one witness; however, this testimony was subjected to vigorous cross-examination; it was lucid and forceful; it was not adequately refuted; and the man who gave it was not discredited.
Although the proof offered was not free from weaknesses---e.g., it is unfortunate that a major decision of this type must be predicated upon the allegations of one person-a careful study of the Record leads us to the following conclusions: that Claimant had a fair trial; that he was not deprived of any of his rights in the realm of due process; and that there was sufficient evidence to justify the conclusion of the Carrier that Grievant was at fault as charged. Consequently, we cannot agree with the contention that Carrier's. determination in this regard was either arbitrary or capricious.
There remains for our consideration the matter of the discipline imposed, viz., outright dismissal, the most severe penalty the Carrier could assess. We are quite reluctant to disturb the decision in this regard, for the Rules referred to above are vitally important, and we are aware of the fact that the Carrier has great responsibilities in this area.
The Board has been prudently cautious in mitigating Carrier discipline, and on a number of occasions it has declined to consider whether the punishment imposed was too severe-the extent of the penalty in cases of this type usually being a Carrier prerogative. On the other hand, a substantial number of our Awards uphold the principle that we are empowered to and should reduce punishment in what we consider to be a proper case: Award 5752 (1952); Award 8477 (1958); Award 9865 (1961); and Award 10953(1962)-among others.
Here, we believe we are confronted with one of the rare situations which justifies us in reducing the penalty imposed.
The Record shows that Grievant had been without interruption, except for a period of service in the Armed Forces, an employe of the Carrier for more than a decade; that except for the one instance of the alleged violation of Rules on the 31st day of December, 1960, his record as an employe is without blemish; and that he was remarkably well-respected in the community where he worked and resided.
In view of all of these circumstances, we are of the opinion that Carrier's application of the penalty of dismissal was sufficiently harsh to warrant our granting a measure of relief.
We are of the belief that this Claim should be settled and adjusted by reinstatement of the Claimant, with seniority unimpaired, but without pay for time lost.
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: 11344-3 168
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 Claim should be sustained in part and denied in part-as shown and indicated.
That Claimant be restored to the service of the Carrier with seniority unimpaired.
With due respect for the finding of the majority that the Claimant here had a fair hearing and was guilty as charged, we dissent to the action of the majority in usurping management prerogative in determining whether or not an employe should be reinstated on a leniency basis. All of the Divisions of the Board have recognized that this Board does not have the power or jurisdiction to reinstate an employe on a leniency basis.
At the time the 1934 Amendments to the Railway Labor Act were being considered, Mr. Joseph B. Eastman, Federal Coordinator of Transportation under the Emergency Railroad Transportation Act of 1933, stated in hearings before the Senate Committee on Interstate Commerce:
"Take the questions of discipline, for example. It seems to me that such a national board, if it were wise, ought to make it perfectly clear at the outset that it will not interfere in matters of discipline unless it has an exceedingly good case, and all doubtful cases after it has made that policy clear would not be referred, I assume, to the national board."