NATIONAL RAILROAD ADJUSTWNT BOARD
THIRD DIVISION

 Alfred H. Brent, Referee
PARTIES TO DISPUTE:

 Award Number 19488
 Docket Number CL-19736
(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express 8e Station Employees

 (The Baltimore and Ohio Railroad Company

(1) Carrier violated the rules of the Clerks' Agreement when it dismissed Mr. J. F. Giovinazzo from the service of the company on September 27, 1968.
(2) Mr. J. F. Giovinazzo shall be paid one day's pay (at the rate attached to position of Janitor) for August 28, 1968, and each subsequent date, 5 days per week (except for the period September 18 to September 27, 1968) until he is restored to the service of Carrier with all rights unimpaired.

 OPINION OF BOARD: On September 2 1968 the claimant with leaving
 Company property prior to terminaton of charged falsifying
 work reports and neglect of duty on August 15, 1968 and August 27, 1968 and
 was given notice to appear for an investigation cm September 5, 1968. At the
 request of the Local Chairman of the Clerk's Organization, these investigations
 were postponed until September 16, 1968. Investigations were held on September
 16 and 17, 1968 and on September 27, 1968 the claimant was advised that he was
 dismissed from the Carrier's service.

 The Organization claims that these investigations were improperly adjourned in violation of Rule 47(a) of the Agreement between the parties sad that Rule 47(1) of the Agreement only provides for adjournments beyond the ten day period when there is mutual agreement betweeen the management and the General Chairman. The Organization contends that these investigations would have been timely held if they were held on September 12 and 13, 1968 rather than an September 16 and 17, 1968.
The procedural objections by the Organization are not impressive in view of the fact that the request for adjournment was initiated by the Local Chairman of the Clerk's Organization and was intended to assist in the presentation of the claimant'
The Carrier's complaint that the claimant was off the property an August 15 and August 27, 1968 is mitigated by the fact that the traimaster bad condoned similar offenses previously, on some 20 occasions. The Carrier bad the responsibility of indicating to the claimant that it would no longer condone his being off the property during working hours. Since there vas no warning to the claimant prior to his termination, the punishment is excessive.

 i



severity of punishment must be reasonably related to the gravity of the offense.
 We have repeatedly observed that misdemeanors do not require life sentences,
 Long experience has demonstrated that certainty of punish men (Auk more
 of a deterrent to wrongdoing than the severity of the
 Referee Quince)

 The Hoard therefore directs that the claimant be restored to service of the Carrier with seniority and other rights unimpaired and that bis'iecord indicate that he was given a two-weeks suspension without pay, for being off the property without permission. Under Rule #47(g) of the Clerks' Agraeemt the claimant would be entitled to receive lost wages, less the amount of earnings in other eAployment during the time out of service. He therefoie kball'be compensated for all lost w allowed.




respectively Carrier and Employes within the meaning of the Railway TeborAct,
 as approved June 21, 1934; ,.

 That this Division of the Adjustment Hoard has fuiiadictioa'dver the
 dispute involved herein; and -~.^ ..



        Clain to be modified in accordance with the Opinion:


                          HATIOIAL RAILROAD ADJUSTI4;lI' HOARD

                          By Order of Third Division


ATTEST: I~/J~
 Executive Secretary

        Dated at Chicago, Illinois, this 17th

                            day of November I912:

          CARRIER WF'·aMERS' DISSENT TO AWARD N0. 19488

          IY3CK'fT r:G. cL-197.',6


On April 11, 1967, Carrier offered to reinstate the claimant on a leniency basis with no pay for time lost; however, the offer was not accepted and Carrier declined the claim_ in its entirety.

 This Board has, on numerous occasions, issued Awards to the effect that claimants had an oblie,ation to mitigate dar·~iages and, by failing to accept Carrier's cc-promise proposal, they unnecessarily added to the damages.

        The majority in ,this case unnecessarily compounded Carrier's liability.


The imposition of discipline is within managerial discretion and leniency is a matter properly within the province of the C=rrier. Therefore, the majority clearly crred in substituting its jud?.aent for that of the Carrier in the instant dispute.

        We dissent.


                          1T, i i ~

                          lt. r. tf. Braidwood


                          P. C. Carter


                                  ~ LGLX y~ V

                          G. L. Na -lor


                          W, B. Jones,

          LABOR MEMBER'S ANSWER

          TO

          CARRIER MEMBERS' DISSENT TO AWARD N0. 19488 (CL-19?36)


        The Dissent of Carrier Members is neither ,justified nor suPported by either the record or the Award. It i.> so palpably erroneous it requires correction. The Dissent seeks to impeach the Award on the ground that Carrier' to reinstate Claimant on a leniency basis should have been construed as an opportunity for Claimant was refused at his peril. The acceptance by Claimant of Carrier's "generous offer" of "leniency" would have meant that Claimant would have lost approximately seven months' wages, and t-.ould have implied a i%:cognitian of substantial guilt on the part of Claimant. "lie offer i.:,,as not uncondit understanding `hat the monetary portion of Claimant's claim c::ou3.d be pursued. It was properly rejected and the rejection does not create a failure to mitigate damages.


              The second paragraph of the Dissent improperly states:


              "This Board has, on numerous occasions, issued :wards

        to the effect that claimants had an obligation to

        mitigate damages arid, by failing to accept Carrier's

        compromise proposal, they unnecessarily added to the

        damages." (Underscoring added).

        Four Carrier Members signed this Dissent; one would think that

        at least one of the four would be in a position to provide at

        least a single Award Number covering the "nurierous acca:;ions"

        alluded to. Obvio,:sly, it is easy to generalize, but an attempt

        to impeach an Award should be precise and offer evidence to


.t
 support generalities. There are Awards on this matter; for instance, Award No. 13683, Referee Coburn. Here, it was held:

 "***Her acceptance of the June 29 offer would have constituted a request for leniency and, consequently, an admission of guilt which, in turn, would ha furnished the Carrier with an air-tight defense to the claim when later considered by this Board." Referee Brent's dismissal of Carrier's leniency argument in the instant cane is compatible with Referee Coburn's conclusions cited above.
 The third paragraph of Carrier Members' Dissl-nt accuses the Majority of unnecessarily compounding Carrier's liability. This is sophomoric rhetoric attempting to blame someone else for one's own shortcomings. The Carrier created their own liability by preferring flimsy charges againzt a long-service employe, holding an imperfect investigation, and dismissing him for what, at best, would be considered a minor discretion. Carrier compounded its own liability by refusing to matter on the property before the dispute was referred to this Board.

 The final paragraph of the Dissent accuses the Majority of making a mistake and substituting our judgement for that of the Carrier. In dismissal cases of this nature, the Railway Labor Act clearly gives the National Railroad Adjustment Board complete and full authority to find a violation of the Agreement where the Carrier was obviously wrong. obviously, if we were unable to do so, there would never be a need to bring a dis-

                            -2- LABOR MEMBER'S ANSWER TO CARR T'Fft MEMBERS' DISSENT TO AWARD 19488 (CL-197:6)

cipline case to this Board.
 The Dissent is unsound, unsupported by authority, and is pure and simple gibberish. It detracts nothing frPm the

 decision in Award 19488 /.

                            . Fletcher, Labor Member


                        D cember 19, 1972


      -3- LABOR MEPIBER'S ANSWER TO CARRIER MEMBERS' DISSENT TO AWARD 19488 (CL-19736)