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                    THIRD DIVISION Docket Number SG-19616


                        Joseph E. Cole, Referee


        (Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

                    (George P. Baker, Richard C. Bond, Jervis Langdon, Jr.,

                    ( and Willard Wirtyz, Trustees of the Property of

                    (Penn Central Transportation Company, Debtor


        STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad

        Signalmen on the former New York, New Haven and Hartford Railroad Company that:.,


        Carrier violated the current Signalmen's Agreement, particularly Rule 58, when it did not give Assistant Signalman C. R. Looby a fair and impartial hearing within ten (10 after the appeal.


        Carrier now return to service C. R. Looby, at some early date, with all rights and privileges as a consequence of the violation.


        OPINION OF BOARD: 1. The record shows that the controlling agreement was the

        Signalmens agreement with the effective date of January 1, 1955, The fact that this agreement was not invoked until later does not change the fact that there is no other agreement that supersedes this agreement and Rule 58 in this agreement is controlling here.


        2. A fair and impartial hearing was held within the prescribed time and Claimant was advised of his dismissal as a result of the investigation and his testimony, all according to the agreement.


        3. Further processing was done in the normal grievance procedure as set out in the rules.


        4. This Board will not require a carrier to show leniency unless there has been fraud. The carrier may assess as great a penalty as is possible and may be merciful and lenient at any time it wants to be. But, lenience is not required,


        5. There was ample evidence that Claimant was in violation of Rule G and that the penalty was invoked after a fair and impartial hearing in an order that was not arbitrary or capricious.

                    Award Number 19490 Page 2

                  Docket Number SG-19616


        FINDIV;!;S: 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 <:~;rrier ;·.:;d D,Ployes within the meaning of the Railway Labor Act, as approved Tune 27., 194;

 That this 1Jivfsi-nn of the Adjustment Board has jurisdiction over the dispuLc involved herein; and

        That the Adreemeiit was not violated.


                      A W A R D


        Claim denied.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicao, Illinois, this 17th day of November 1972.