NATIONAL RAILROAD ADJUS'DODFl' HOARD
THIRD DIVISION Docket Number CL-21136
Irwin M. Lieberman, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM? Claim of the System Committee of the Brotherhood,
GL-7762, that:
1. Carrier violated the Agreement between the parties when on
July 10, 1974,
their arbitrarily and capriciously dismissed Clerk !. J.
Sundarmeier.
2. The Carrier's action was unjust, unreasonable and an abuse
of Carrier's discretion.
3.
Carrier shall now reinstate E. J. Sundermeder with all rights
and privileges unimpaired and pay him for all time lost, including time
spent attending the hearing.
4. In addition to money amounts claimed herein, Carrier shall
pay claimant an additional amount of ten (10'%) percent interest compounded
daily.
OPINION Or BOARD: This is a disciplinary dispute in which Claimant was
dismissed. The charge against Claimant was phrased as
follows:
"You are hereby charged with insubordination by your failure
to protect your regular assignment, No. 6 bill clerk position, Homestead Yard, Friday, June 28,
1974,
on duty
9:30
A.M."
Petitioner initially objects to the investigation on the grounds
that the charge was imprecise and not specific. We find no merit in that
contention. The charge gave Claimant notice that a particular incident was
to be investigated and was certainly adequate enough to enable him to prepare
his defense; it was not a "fishing expedition" as argued by the organization. Petitioner's right to
the language of the charge (see Awards 20428, 20603, 20670,
19475
among many
others). A number of other procedural arguments were raised by Petitioner,
none of which are supported by the record of the investigation, or the rules.
Petitioner also objects to the consideration of Claimant's prior
record and its inclusion in Carrier's submission, a "new evidence". It is
Award Number 21118 Page 2
Docket Number CL-21136
noted that the question of Claimant's prior record was raised in correspondence during the handling
that an employe's records may be considered by Carrier in determining the
appropriate penalty in a discipline case; it is only in the determination of
guilt or innocence that the prior record must not be considered.
The record of the investigation contains substantial evidence to
support Carrier's conclusion that Claimant was guilty of the charge against
him. It is quite clear that we cannot substitute our judgment for that of
Carrier. As for the penalty of dismissal, we have no basis for questioning
Carrier's decision, particularly in the light of Claimant's prior record:
there was nothing arbitrary, unreasonable or capricious in the penalty determination.
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 &mployes within the meaning of the Railway Labor
Act, as approved June 21, 1934;
That this Division of the Adjustauet Board has jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
49&0
Executive Secretary
Dated at Chicago, Illinois, this 16th defy of July 1976.