(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: ( '

STATEMENT OF _CLAIM: Claim of the General Committee of the Brotherhood of

Appeal on behalf of Mr. W. G. Kendall, Jr., who was dismissed effective 4:00 p.m. January 24, 1975, on the basis of the following charge: Excessive absenteeism on the following dates: 1-6-75 sick, 1-14-75 reporting but absent.

 OPINION OF BOARD: Claimant was.18 years old and had been in service for six
 months with this carrier as an assistant signalman, a training position. He was ordered to appear fo absenteeism. On January 22, 1975 a formal hearing was held on the following charges



The charges were brought by Mr. M. J. Rose. who also conducted the hearing. Based upon the findings at the hearing, the claimant was found guilty as charged and on January 24, 1975 he was dismissed from service by letter from Mr. g. d. Rose. The Brotherhood cites various sections of the agreement between the-parties dealing with "Discipline and Griavatrces". Special reference is made to the requirmoenta that an amploye in service more than thirty days must not be disciplined without a fair and impartial investigation and he is entitled to a fair and impartial hearing.
It is the Brotherhood's position that its appeal following the dismissal of claimant was based upon leniency, and in the alternative if that fails " the discipline should be reduced by returning him to service at a later date". '

 Further, it is the Brotherhood's position that the penalty of dismissal here is excessive. In addition, the appeal is grounded upon the fact the claimant was denied due process insofar as Mr. Rose, the carrier representative, filed the charges, conducted the investigation, and assessed the discipline. Lastly, the Brotherhood alleges that carrier prejudged the claimant guilty and, presumably, he was denied a fair and impartial hearing.
                  Docket Number SG-21391


The carrier, for its part, opposes these positions. Neither party cites a provision of the agreement between the parties dealing with the subject of absenteeism or excessive absenteeism. The issues recited above will be considered in order:

 If the appeal on behalf of claimant was based upon leniency, it would be difficult to avoid the argument that such a matter is one of managerial discretion and hardly a basis for review by this Board. The Brotherhood claims, however, that it made its appeal in the alternative, one of which was leniency. It is clear that carrier rejected the appeal and in two separate instances made reference to the appeal as one for leniency. There is no indication in the record that the Brotherhood protested such references. On the other hand carrier cites Award 11651 in support of its position. However, that case is distinguishable because it was originally based upon a guilty plea subsequently converted to a plea for leniency. Although there are strong su leniency subsequently converted to other grounds, we cannot reach that conclusion with confidence, b have no alternative other than to accept the Brotherhood's view that its appeal had a substantive base and it is therefore entitled to review by this Board.

 As it happens the substantive review dqes,aot help the claimant in this case. The record contains substantial evidence in support of the findings that claimant was guilty of excessive absenteeism on the designated days. Such evidence includes his admission to untruthfulness regarding absences and his admission that he could not provide proof in the form of a doctor's certificate for the absence when he claimed to be sick. The Board's function in discipline cases is not to substitute its judgment for that of the carrier where there is an evidentiary base in the record for the findings reached.

 Once the clai-at's.guilt had been established it is appropriate to review claimant's prior record. for infraction# to determine the appropriate punishment. That was done here and it is clear,that in his service of slightly over six months claimant received warnings and reprimands for his poor attendance. On this record th be said that carrier's actions were unreasonable, arbitrary or capricious.

 With respect to the view that claimant was denied due process insofar as the same person filed charges, conducted the investigation and assessed the discipline, we find there is a procedural obstacle. In the argument before this "Board the claimant's representative placed primary emphasis on this and citid several awards in support of the view that this constitutes a failure of due process and a denial of a fair hearing. Unfortunately, we cannot reach this question. Carrier points out that this claim was not made on the property by the claimant or his representative. We have reviewed the record and we must agree. An objection of this nature cannot be raised by claimant for the first time before this Board and its consideration is outside the bounds of our authority.
                  Award Number 21229 Page 3

                  Docket Number 9G-21391


Lastly, the claimant asserts, without much discussion, that carrier prejudged the claimant. In support of this the Brotherhood points out that the carrier had produced no witnesses at the hearing. We do not see that there is any necessary connection between this premise and conclusion. Nevertheless, the sh the same defect as the previous argument concerning unfairness. It was not made on the property and it cannot be raised here for the first time.

        FINDINGS: The Third Division of tha Adjustment Board, upon the whole record and all the evidence, finds and holdac


        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.


                      A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: aze" Executive Secretary

 Dated at Chicago, Illinois, this 31st day of August 1976.