' PUBLIC LAW BOARD No. 1838
Award No. 18
Case No. MW-PO-77-112
Parties Brotherhood of Maintenance of Way Employees
to and .
Dispute Norfolk and Western Railway Company
Statement Elmer Kitchen was dismissed from service for conduct unbecoming
of an employe of the Carrier. Claimant pleaded guilty -we ask
Claim leniency in this instant case and return Mr. Kitchen to service
without pay. '
Findings The Board, after hearing upon the whole record and all evidence,
finds that the parties herein are Carrier and Employee within
the meaning of the Railway Labor Act, as amended, that
this
Board is duly constituted by Agreement dated March 1, 1976,
that it has jurisdiction of the parties and the subject matter,
and that the parties were given due notice of the hearing held.
Claimant was dismissed from service, effective October 28, 1977,
for conduct unbecoming an employee in that he was found to
be in the possession of alcoholic beverages .and marijuana on
camp car N&W527144, at approximately 6:00 AM on October 28,
1977;.
and for permitting two (2) unauthorized persons on said
camp car located at the old P. C. Freight House, Circleville,
Ohio.
Claimant was given a formal investigation on November 18, 1977
and he plead guilty thereto and requested leniency.
This is a request for leniency. The Board finds in the
circumstances that it shall dismiss same as a request for
Award No. 18 - 1
$3ea
Page 2
leniency is a matter for the Carrier to determine. As
pointed out in Third Division Award 15566 (Lynch)
- "An investigation was held on the facts as here outlined
were admitted. This Board has consistently ruled that
we should not substitute our judgment for that of the
Carrier in matters of this kind unless there is clear
evidence that in the exercise of.its right to discipline
the Carrier acted in an arbitrary or capricious manner.
We find no violation of Rule 27; nor have we the authority
to overturn Carrier's action on the basis of leniency.
Leniency is a perogative of management. Awards 9775,
11914, 12104, 13116, 14800." -
A denial Award will serve as well as a dismissal.
Award Claim denied.
A. D.
Arnett,-Employee Member G. C. Edwards, Carrier Member
rt ur . Van Wart, Chairman
and Neutral Member
Issued at Wilmington, Delaware, November 26, 1979.