(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (St. Louis-San Francisco Railway Company


(1) The dismissal of Trackman R. B. Houston for alleged violation of Rules 176, 189 and 190 was excessive and wholly disproportionate to the offense with wh
(2) Trackman R. B. Houston shall now be allowed the benefits prescribed in Agreement Rule 91 (b) (6), Article 11."
violation of Rules 176, 189 and 190. Rule 176 is fundamentally j
 directed against negligent, insubordinate, dishonest, immoral and
 otherwise substantially improper behavior, and the penalty for such
 offenses is discharge. Rule 189 prohibits employes from absenting
 themselves from their,duties without proper authority. Rule 190 bars
 the unnecessary use of telephones, and also prohibits personal messages
 being sent on railway wires.
Houston made two personal calls to Osceola, Arkansas and one to Little
 Rock. On July 12, 1976, the employe made two such personal and
 unauthorized calls to Osceola. The Carrier was billed $2.84 by South
 Central Bell Telephone Company for said five telephone calls. The
 record shows that the Claimant acted entirely without justification,
 and in violation of the aforesaid Rules in making the contested
 telephone calls. The Rules here involved cover significant offenses,
 and their observance by employes is vital to an orderly and proper
 operation. Accordingly, the conclusion is inescapable that the
 evidence supports discipline for the instant infractions.
li whether the penalty imposed is commensurate with the violations that
 have been established, or whether the discipline is excessive. It is !,
 well established that in discharge cases, the offense must be of a

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                    Award Number 22225 Page 2

                    Docket Number MW-22253


capital nature in order for the ultimate penalty to be approved. In the present case, it appears that though the employe absented himself from work and incurred charges to the Carrier, the degree of misbehavior is somewhat less than that which would justify termination. In other words, substantial discipline is indicated, but discharge is not.

 However, nothing herein should be construed to indicate that violation of the Rules here involved can be tolerated. Under the circumstances it is determined that the discipline should be reduced to a disciplinary suspension, and that the Claimant should be returned to service with seniority unimpaired, but with no reimbursement for time or benefits lost. The Claimant should also understand that any repetition of the instant behavior, or future violation of the Rules here involved, will result in discharge.

        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 Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Laboi Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the discipline was excessive.


                    A W A R D


        Claim-sustained in accordance with the conditions set forth

              1

in theinion>: r

    ~I i.':J':~ J i:;f NATIONAL RAILROAD ADJUSTMENT BOARD

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      By Order of Third Division

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ATTEST:

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        Executive Secretary


Dated at Chicago, Illinois, this 15th day of November 1978.