This case involves appeal of two different but related charges, combined by the Parties for the sake of efficiency. The first charge -- unauthorized use of and damage to a Carrier vehicle -- stemmed from Claimant's involvement in an accident on February 15, 1991. on that date, at approximately 10:00 P.M., the Supervisor of Signals was informed that Carrier vehicle No. 043115, assigned to Claimant, had been discovered wrecked and abandoned on State Route 80, near Martin, Kentucky. The Supervisor of Signals reported the incident to the Floyd County Sheriff's Department. The Sheriff's Department informed him that the driver of the vehicle had been apprehended, transported to the Martin, Kentucky hospital, treated for exposure, and Charged with Driving Under the Influence of an Intoxicating Beverage and Leaving the Scene of an Accident. Claimant was removed from service pending an Investigation.

The second charge -- failure to comply with Safety Rule 155 between November 5 and November 21, 1990 -- was a product of the first incident. In the process of investigating the accident involving Claimant and vehicle No. 043115, the Supervisor of Signals discovered that Claimant had been arrested and charged with Driving Under the Influence of an intoxicating beverage on August 24, 1990. On October 23, 1990 Claimant entered a plea of guilty, paid a fine of $417.50, agreed to rehabilitation counselling and had his driver's license suspended for thirty days. On November 5, 1990, Claimant was awarded the position of Independent Signal Maintainer at Paintsville, Kentucky, and was assigned Carrier vehicle No. 043115. Claimant accepted that position without informing the carrier that he did not, at the time, have a valid driver's license.

Investigations with respect to each charge were scheduled for March 14, 1991, but were postponed pending the resolution of claimant's civil hearing. Both hearings were ultimately held on June 14, 1991, at 10:00 A.M. and 1:00 P.M., respectively. Claimant was subsequently notified by Carrier on June 21, 1991, that he had been found guilty of the first charge and was dismissed from service. By letter of July 2, 1991, Claimant was also notified that he had been found guilty of the second charge and was dismissed from service.

It is the position of the organization that claimant's dismissal constitutes excessive and arbitrary discipline in light of his previously unblemished record. Moreover, it points out that the Board has previously held that discipline should be progressive, particularly in the case of a long-term employee with a good record of service (See, Second Division Award 8157, Third Division Award 13128, and Special Board of Adjustment No. 1003, Award 24). Finally, the organization directs the Board's attention to Claimant's closing statement -at the end of the second Investigation -- that he would "do anything to make amends with this company for a second chance."

A careful reading of the transcript of the Hearings indicates that weather conditions probably forced Claimant to abandon his vehicle following the accident. Nevertheless, the remaining proven charges are sufficiently serious to support Carrier's assessment of the ultimate penalty of dismissal. Notwithstanding Claimant's desire to "make amends" it is not within the Board's prerogative to grant him a "leniency" reinstatement. That is the sole prerogative of Carrier. (See, Public Law Board No. 2096, Award 11)

.

AWAR