(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (The Pittsburgh and Lake Erie Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9700) that:
(a) In accordance with Rule 20 of the Rules Agreement effective September 1, 1946, as amended, we are appealing the decision of Director-Labor Relations and Personnel R. D. Jones in his letter dated May 20, 1981 in the discipline case of Custodian Mr. D. G. Varley who was charged with Rules (T) B7 and J-1 of the P& actual sentence.
          Rule (T) states:


          "Absence without permission as well as unjustified or excessive absences."


          Rule J-1 states:


            "Employees will not absent themselves from duty without proper authority."


(b) We are not in accord with the decision of Mr. R. D. Jones, Director
 Labor Relations and Personnel, and request that Custodian, Mr. David G. Varley,
 be returned to service immediately and paid for all lost wages and his record
 be cleared of this charge.
OPINION of BOARD: On February 18, 1981, Claimant was working as a Custodian
 for Carrier in Pittsburgh. His hours of work were from 9:00
 P. M. to 6:00 A. M. with lunch at approximately 1:00 A.M. On the night in question
 Claimant left the building at about 10:30 P. M. and, according to his testimony,
 returned about five minutes later and worked thereafter. At the lunch break
 Claimant stated that he left the building at about "1 A. M. to 2 A. M." and, not
 feeling well, sat in his car. He returned to the building at about 4:00 A.M.
 to 4:30 A. M. when he was confronted by his Supervisor and was sent home. His
 Supervisor claims that he did not do much work that night and was not seen
 after leaving the building at 10:30 P. M. For this transgression Claimant was
 charged with being absent without permission and after an investigation was
 penalized by a ninety-day suspension.
Carrier maintains that the infraction was in fact admitted by Claimant (except for a discrepancy as to the time out of the building) and the discipline was appropriate in view of the nature of the transgression. In fact, Carrier argues that dismissal has been found to be appropriate for similar offenses.
                    Award Number 25288 Page 2

                    Docket Number CL-24968


The Organization argues that the discipline was wholly inappropriate in view of the nature of the offense and Claimant's functions that night. It is urged that discipline must be related to the type of infraction and not applied by rote. In this instance Claimant had an umblemished record and almost four years of service for Carrier. Petitioner cites Award 23220 of this Board involving the same parties, which is almost identical to that herein.
There is no doubt of Claimant's guilt of the charges. The only open question is whether he was away from his work station for some 2 1/2 hours or for 5 hours (not including the lunch period). That question does not appear to be material to the resolution of this dispute. The heart of the matter is the measure of discipline imposed. This Board believes that discipline should be constructive and not punitive in nature. In that context each circumstance must be evaluated on its own merits. In this particular case it must be concluded that the discipline was disproportionate to the nature of the infraction, especially in view of the unblemished prior record of the Claimant. Thus, the penalty must be characterized as arbitrary and excessive. For reasons analagous to those expressed by this Board in Award 23220, the discipline in this case also will be reduced to a 45-day suspension and Claimant will be made whole for losses sustained in excess of that period.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
 ' to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
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


                                            1,


                                                    m.


Attest: '~ ~ ' s~
 Nancy J De -Executive Secretary ~,,~. '

 Dated at Chicago, Illinois this 28th day of February 1985.
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