Joseph A. Sickles, Referee


            (Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Bnployea PARTIES TO DISPUTE: (Norfolk and Western Railway Company ( (Involving employees on lines formerly operated by the Wabash Railroad Company)


                        STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7245) that:


            1, Carrier violated the provisions of the Schedule for Cle.ks, effective May 1, 1933, specifical unjustly and in an obvious abuse of discretionary authority, dismissed Clerk J. F. Brooke from the service of the Carrier.


                  2. Claimant will now be returned to work with all rights unimpaired,


            3. Claimant will now be paid for all time lost as a result of Carrier's harsh and unjust action.


            4. In addition to the amounts claimed above, the Carrier shall pay Claimant an additional amount of one percent compounded monthly.


                        OPINION OF HOARD: Claimant was dismissed from service, after an investigation, on a charge of sleeping while on duty.


            A review of the entire record, including the transcript of the April 13, 1972 investigation, demonstrates that none of Claimant's substantive procedural rights were viol


            Claimant denied that he was asleep while on duty, and states that his Supervisor incorrectly appraised the situation. Other witnesses were unable to either confirm or deny that Claimant was, in fact, awake or asleep at the time.


            It is well settled that this Board shall not attempt to weigh evidence, or resolve conflicts therein in its appellate capacity. There is evidence in the record, even though controverted, to support the charge. Accordingly, this Board holds that the Carrier sustained its finding of Claimant's guilt. However, under all of the facts and circumstances presented, the Board is of the view that a permanent dismissal from Carrier's service was not warranted in this case and is excessive.


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                  Award Number 19786 Page 2

                  Docket Number CL-19985


        Based upon the entire record the Board finds:


        (1) That discipline was warranted; and


        (2) That permanent dismissal was excessive.


The Board awards that Claimant shall be restored to Carrier's service with seniority and other rights unimpaired, but without pay for time lost. There is no agreement support for Item 4 of the Claim.

        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 Employee involved in this dispute are respectively Carrier and Employee 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 discipline imposed was excessive.


                    A W A R D


        Claim sustained to the extent indicated in Opinion and Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: 09
 Executive Secretary

 Dated at Chicago, Illinois, this 25th day of May, 1973.

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