NATIONAL RAILROAD ADJUSTMENT BOARD
 Award Number 25027
 - THIRD DIVISION Docket Number CL-25034





      (a) The Carrier violated the Rules Agreement, effective December 1, 1949, reprinted January, 1958, to include amendment and agreement subsequent to December 1, 1949, when it assessed discipline of dismissal on Clerk Deborah Dixon Fansler an February 24, 1981.


      (b) Claimant Fansler's record be cleared of the charges brought against her on January 22, 1981. (IHB Docket CLK-264).


      (c) Violation of Rules 15, 28 and others, whereas D. Dixon's (Mrs. Fansler) discipline rendered February 24, 1981 was unfair and unduly excessive creating an exorbitant amount of overtime on the Carrier's behalf, in addition to a series of time claims that will follow each and every time Mrs. Fansler is, deprived of her unionized right to work. (Dates claimed are April 26, May 3, 5, 8, 9, 10, 10, 11, 12, 13, 15, 16, 22, 23, 26, June 6, 7, 13, 14, 14, 14, 1981 at $82.227 each date.) (IHB Docket CLK-284).


      (d) Violation of Rules 15, 28 and others whereas D. Dixon's (Mrs. Fansler) discipline rendered February 24, 1981 was unfair and unduly excessive creating an exorbitant amount of overtime on the Carrier's behalf in addition to a series of time claims that will follow each and every time Mrs. Fansler is deprived of her unionized right to work. (Dates claimed are July 3, 4, 5, 1981, $82.227 per day.) (IHB Docket CLK-285).


      (e) Violation of Rules 15, 28 and others: whereas D. Dixon's (Mrs. Fansler) discipline rendered on February 24, 1981 was unfair and unduly excessive thus creating deprivement of the claimant's right of job opportunity and assignment. Mrs. Fansler (D. Dixon) is qualified, available and willing to protect job assignments as past practice has revealed. Date claimed continuous commencing with September 2, 1981. Rate of pay $80.723 per day. (IHB Docket

    ,,A CLK-291).


      OPINION OF BOARD: This dispute involves four (4) separate claims on behalf of the

      Claimant herein. The incident giving rise to the primary claim canie~a*ut as a result of the Carrier's contention that the Claimant had failed

      . to complyyWth instructions issued by her Supervisor. Following an investigation, the Claimattt%.,was dismissed' from Carrier's service. The remaining three claims


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      were filed subsequent to the pleizant's dismissal.


    e

                      Award Number 25027 Page 2

                      Docket Number CL-25034


After reviewing the lengthy record in this dispute, the Board finds substantial evidence to support the Carrier's finding. Although the Board has held many times that dismissal is not inappropriate, in certain instances when an employe fails to comply with legitimate instructions, we consider permanent dismissal to be excessive discipline. This finding is based on certain mitigating facts and circumstances in the record before us.
Having thus found, the claimant shall be restored to service with seniority rights unimpaired, but without any compensation for time lost while out of service.
        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 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 was excessive.


                      A W A R D


        Claim sustained in accordance with the Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


        ATTEST: Nancy J. W - Executive Secretary


        Dated at Chicago, Illinois, this 26th day of September 1984.


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