Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Fhployes PARTIES 7O DISPUTE:
              (Norfolk and Western Railway Cosy


                STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GLr8891) that:


1. Carrier violated the Agreement between the parties when on December 7, 1978, they assessed Mr. R. A. Burr five (5) days actual suspension.

 2. Carrier's action was unjust, unreasonable and an abuse of Carrier's discretion.

 3. Carrier shall reimburse Mr. Burr for all lost time with all rights and privileges unimpaired and allow 18%, interest on all monies due. They shall also submit a written apology to Claimant for the harassment he was subjected to.

 OPINION OF BOARD: At approximately 7:00 AM on November 11, 1978, Claimant, an
 Extra Nabisco Mill Clerk at Toledo. Ohio, was called by carrier representative to rill an Extra Hoard position beginning at 9:00 AM that same morning. According to Claimant, he had previously scheduled a 9:00 AM appointment with his atto the attorney at that early hour to cancel the meting on such short notice. Therefore, Claimant maintains that he reported to work early (approximately 8:00 AM), completed his assigned duties, and attempted to contact the Yard Master at the Front Street office for permission to leave the property for a short time in order to notify the attorney that he was working and to arrange for a later appointment. The Yard Master, however, was unavailable, and after briefly talkia6 with the Yard Clerk at the Front Street office, Claimant left work anyway and drove his personal automobile off company property some 2.2 miles away to a location which is "appro Corduroy Road away from the Homestead Yard Office itself."

        While at this meeting, Claimant did in fact meet with an attorney as

well as with two other Carrier employes who were off duty at the time. At approx
 imately 9:05 AM, however, this gathering was observed by R. J. Cooper, the Terminal
 Trainmaster at the Homestead Yard, who just happened to be looking through a win
 dow in the Assistant Agent's office and who recognised Cisimant and the two other
 employes. The Traimaster contacted the Crew Caller to determine the assignments
 of the three employes and whether they were on or off-duty. The Crew Caller re
 f ....ued that Claimant had been called for the Extra Clerk for the Nabisco Mill at
 9:00 AM; and so the Traimaster, together with the Sergeant of Police, walked
 over to the assemblage and asked Claimant if he had received permission for
 absenteeing himself from his assignment. Claimant responded that he did not have
 ward Number 23456
 Docket NL::aber ;:,-23151

 Page 2

 such Permission, and as a result, the Trainmaster relieved Claimant from d,,4-:, f'r ;`e 'emsinder of his assignment that day and Claimant vas charged with atsent from (his) assignment...without permission from the proper suthorarv., Ann investigation was conducted concerning this matter and, as a result tther^~,
 aimant was adjudged guilty as charged and was assessed a five (5) day suspension without pay. Said suspension is the basis of the instant claim.

 Organization's position in this dispute is that Carrier's actions %srein were undertaken solely in retaliation for Claimant',, involvement in a previous work stoppage. Thus, organization contends that Claimant's hearing was neither fair nor impartial as required by the Rules, and in support of this charrva Organization further alleges; (1) Hearing Officer was biased in his conduct of the investigation (Third Division Award 18963); (2) charge which has been levalee against Claimant by Carrier was vague and not sufficiently specific; (3) penalti which was assessed was not commensurate with the alleged infraction; and

 (4) Claimant was disciplined twice for the same offense and is guilty of "double jeopardy" in this matter.

 In addition to the foregoing procedural objections, Organization further ~=ntends that Claimant did properly perform his assigned duties and that any assessment of disciplin of argumentation Organization maintains that the appropriate remedy which is to be applied herein should include reimbursement ",..for all lost time with all rights and privileges unimpaired and allow 18%, interest on all conies due ...and also submit a written apology to Claimant for the harassment he was subjected to."

 Carrier's position, simply stated, is that Claimant admitted that he was away from his assignment without permission; that such a co®ission is itself a serious infraction which alone would justify the discipline of permanent dismissal; and the five ( penalty imposition (Third Division Award 3171 and Award 102 of Public Law Board No. 1790); and that the Board may not substitute its judgement for that of Carrier when guilt is established (Third Division Awards 11009, 12954, 14272, 19791 and 20034).

 Regarding the various procedural considerations which have been raised by Organization, Carrier further contends that: (1) Hearing Officer exhibited no bias toward Claimant during the investigation and that said hearing was conducted fairly and properly is accordance with the applicable Rules; (2) Organization's charge regard' a "double jeopardy" imposition of discipline is insupportable since Rule 27(47 of the Agreement "expressly states that an employe may be held out of service pending investigation "...and thus..."...there is no provision in the agreement to sustain the Organisation's arguments relative to due process";

 and (3) Organisation's request for 18$ interest payment and an agreement support (Award 27 by Public Law Board No. 1790).

 After carefully reading and studying the entire record in the instant dispute, the Board finds that Organization's arguments as posited hereinabove are completely unpersuasive and, therefore, must be rejected.

 Carrier, therefore,

 apology lack
                      Award Number 23456 Page 3

                      Docket Number CL-23151


        Regarding the various procedural allegations which Organization has

raised, concerning the conduct of the investigation hearing itself, suffice
 it to say that the hearing transcript fails to show that the Hearing officer
 in any way "exhibited manifest bias," "demonstrated prejudgement," "inhibited
 cross examination," "restricted questioning on the part of Organization repre
 sentative" or in any other way failed to allow a "full and "
 such as Organization charges. Quite to the contrary, if thimpartial eurihearing transcript
 shows anything at all in this regard, it shows that the Hearing Officer carried
 out his duties in a most patient and responsible manner, given several outbursts
 of vituperative and otherwise uncomplimentary language directed by Organization
 representative toward the Hearing Officer and Carrier witnesses; and also given
 the fact that many areas of questioning which were developed by Organization
 representative were themselves so completely unrelated to the charge(s) being
 investigated, or were so obtuse to the central issue as to make one wonder as
 to the real purpose for their being offered.

 As to Organization's "double jeopardy" contention and its request that an "apology and 18&,6 interest to be added to the remedy," it is quite clear that the rationale or logic of these arguments/requests either have not been sufficiently developed in the record so as to enable any meaningful comment by this Board or they simply are not authorized by the parties' current Agreement. For these reasons viewed as being unmeritorious.

 Having disposed the numerous procedural questions which have been raised by Organization, our attention now turns to the merits portion of this dispute, and, as has been noted previously, these arguments must also be rejected for obvious reason from his assignment without permission--this is admitted to by Claimant himself. There can also be n and that a five (5) day suspension, under the circumstances, is indeed a lenient penalty. Moreover, it is quite clear that Claimant in this dispute has attempted to usurp Carriers' managerial function to manage the workplace by deciding and acting upon matters which were completely beyond his authority and which were vested solely in the hands of Carrier. Not only did Claimant take it upon himself to decide that he would come into work early to complete his assignment, but he also decided which duties needed to be partially completed prior to his leaving his assignment and which duties would remain incomplete until his later return; and finally he decided when he would leave the assignment and whom he would tell about this undertaking. All of this was done without knowledge to SW supervisor whatsoever anti such unilateral, unauthorized undertakings by an 1slmploye are, for obvious reasons, completely improper and unacceptable.

 Proof of Claimant's guilt has been more than adequately demonstrated in this matter and there are no procedural objections which would otherwise impact upon this consideration. Under such circumstances, therefore, the Board may not/will not =ut~c:tute its ,judgement for that of Carrier, and the penalty which has been impaged herein wil
                        Award Number 23456 page 4

                        Docket Number CL-23151


        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 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 AWIISENT BOARD

                            By Order of Third Division


ATTEST:
      Rxecutive Secretary


Dated at Chicagop Illinois, this 8th day of December 1981.

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