Award Number 17669
Docket Number MW-18299
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Don Gladden, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DELAWARE AND HUDSON RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(1) The suspension of Riveter Raymond J. Fontaine from April 25
to and including May 24, 1968 was without just and sufficient cause and on the basis of unproven charges. (System
Case No. 24.68 MW).
(2) Riveter Raymond J. Fontaine's record shall be cleared of the
charges and he shall be compensated for wage loss suffered,
all in accordance with the provisions of Rule 35(b).
OPINION OF BOARD: This is a discipline case. Claimant was assessed thirty calendar days discipline after a hearing to determine the
responsibility of claimant for alleged insubordination, using vile and abusive
language to his foreman and conduct unbecoming an employee in connection with his work babits.
It is well settled that the Board is without authority to substitute its
judgment for that of the Carrier and that if there is substantial evidence
in support of the Carrier's findings, this Board may not overturn such
findings. It is further well established that absent a showing, in so far as
the degree or amount of discipline is concerned, that the Carrier was
arbitrary, capricious, or acting in bad faith in assessing such discipline
that the Board is without authority to set aside, modify or change the
discipline imposed. This position was recently restated by the Board in
Award No. 16074 (Perelson) wherein we quoted Award No. 5032 as follows:
"Numerous prior awards of this Board set forth our function
in discipline cases. We do not substitute our judgment for that of
the Carrier nor do we decide the matter in accord with what we
might or might not do had it been ours to determine. Our function
is but to pass upon the question whether, without weighing it, there
is some substantial evidence in the record to sustain a finding of
guilty. Once 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 the
penalty imposed unless we can say that it clearly appears from the
record that the action of the Carrier with respect thereto was so
unjust, unreasonable or arbitrary as to so constitute an abuse of
discretion."
Based upon the record before the Board, we find substantial evidence
to support the Carrier's findings and that under the circumstances shown
therein that the assessment of thirty calendar days was not arbitrary,
capricious or unjust.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 20th day of January 1970.
Central Publishing Co., Indianapolis, Ind. 46206 Printed in U.S.A.
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