PARTIES TO DISPUTE -

          Brotherhood of Maintenance of Way

                    Employees -----

                    and

                                                          __-


              Southern Railway Company


STATEMENT OF CLAIM

          Track Laborer, R. J. Cannon, 2480 Nowlin Circle, Acworth, GA 30101 was dismissed from service on July 6, 1984 for alleged failure to protect his assignment from May 4, to May 21, 1984. Claim was handled on the property in accordance with Railway Labor Act and agreement provisions. Employees request reinstatement with back pay for all lost time and all other rights unimpaired.


FINDINGS

Claimant, at the time of the dispute in question, was employed as a laborer at Rockmart, Georgia. By letter dated May 21, 1984, Claimant was notified to attend an investigation concerning charges that he failed to protect his assignment on May 4. 1984 and thereafter. An investigation was held on June 26, 1984. By letter dated July 6, 1984, Claimant was dismissed from service on the basis of his adjudged guilt concerning the aforementioned

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charges.,

 The issue to be decided in this dispute is whether Claimant was dismissed for just cause under the Agreement.

 The position of the organization is that Claimant was wrongful-1y dismissed by Carrier on the basis of the charges.

 The organization contends that Claimant acted properly and responsibly with regard to his absences on the date ir. question. The Organization alleges that Claimant was unable to protect his assignment on those dates due to his incarceration on May 3. 1984. The Organization further alleges that Claimant notified Carrier of his predicament at the earliest possible opportunity and requested either a leave of absence or a vacation leave. The

 Organization maintains that under the circumstances Claimant did - .
 everything in his power to protect his assignment, and that
 Carrier acted arbitrarily in dismissing him on the basis of the _.- _
 uneacused absences.

 The position of the Carrier is that Claimant was properly dismissed for his failure to protect employment on the date in question.

    Carrier contends that there is no dispute of fact concerning


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Claimant's failure to protect his assignment. Carrier cites Claimant's own testimony admitting that he was absent without permission. Carrier further cites the fact that Claimant had no eligibility for vacation time, and that therefore his request for such time in no way excused his absences. Finally, Carrier argues that it was under no obligation to grant Claimant a leave of absence under the circumstances, maintaining that its policy is not to grant leave where an employee is unable to work due to incarceration. Carrier further asserts that any decision regarding leaves of absence is discretionary, ane that it clearly acted within its discretion in denying leave. Carrier concludes that Claimant's absences were not excused in any way by his incarceration, and that he was justifiably dismissed for failing to protect his assignment between May 4, 1984 and May 21, 1985.


After review of the record, the Board finds that the Organization's claim must be denied.


It is not the purpose of this Board to rehear an
 investigation that Carrier held but only to determine if the
 discipline imposed was arbitrary, capricious or an abuse of
 discretion.

Initially, we find that Carrier has sustained the charges against Claimant through substantial evidence. There is no


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dispute of fact concerning Claimant's failure to protect his

employment on the dates of issue. Further, the Organization has presented no evidence indicating that any of the absences were


excused either explicitly or implicitly by Carrier. Claimant's inability to protect his assignment due to incarceration does not


serve as a legitimate excuse for his absences. Additionally. Carrier was not obligated under the circumstances to grant a


leave of absence pending the disposition of Claimant's criminal charges. Therefore, we find that in light of the charges at issue and Claimant's prior disciplinary problems. Carrier acted within its discretion in dismissing Claimant.


AWARD
    Claim Denied.


                                Q fy

                                Neutral Mem e


                                  arrier er~mb


.
                                i r a 'zation em a -


Date: Q.r 1, /987
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