Fourth Division Award No. 2659 (Weston)

"While there is no question but that Claimant failed to use the yard engine to assist Train PR-3 as he was directed to do, this record does not support such substantial discipline as disqualification or a 29 day suspension without pay for an employ with an unblemished record of 18 years service. Claimant did not refuse to carry out the order and did get Train PR-3 out of the yard without delay or damage. He should have used the yard engine to accomplish the work in line with the trainmaster's instructions and should be subjected to a formal reprimand for his failure to do so, even though, according to his uncontroverted testimony, Carrier's Movement Director had informed him that the bigger engine should be used.

"Failure to comply with a superior's instructions in all respects is a serious offense that warrants discipline and our conclusion that disqualification or a 29 day suspension would be arbitrary and excessive discipline is based upon, and limited to, the specific facts of the present case.

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"The discipline administered to Claimant will be reduced to a formal reprimand and Carrier's records will be modified accordingly; Claimant will be reimbursed for all wages lost during the period of disqualification."

Fourth Division Award No. 2860 (Weston)

"If these facts stood alone, the record would have supported at the most a relatively short suspension. The material defect, however, in Claimant's position is that he released the crew after it had been on duty for less than six hours and did so, as he concedes, without notifying or obtaining permission for the Yardmaster or any other appropriate superior or ascertaining from them whether they had any additional work for the crew to perform. He had no right to deprive Carrier of the crew's services, even if he were under the impression that he himself had completed the work that had been assigned to him and was free to leave. Under the circumstances, there is no ground for holding that Carrier was unjustified in administering substantial discipline. Dismissal is excessive in view of Claimant's good record but we will direct Carrier to offer immediate reinstatement to Claimant of a Yardmaster or Assistant Yardmaster position with seniority rights unimpaired but without back pay."

Fourth Division Award No. 2974 (O'Brien)

"In retrospect it appears that claimant, a yardmaster for approximately three months on the date involved, made a mistake in judgment and that error resulted in the Fisher Plant being set up late. However, there is no evidence of gross or deliberate dereliction of duty on claimant's behalf. Nor can there be discerned from the record a pattern of irresponsibility or poor work performance on claimant's part. His mistake in judgment can certainly be explained by his lack of experience as a yardmaster. Consequently, while some discipline is appropriate, disqualification as a yardmaster is unduly harsh under the aforementioned circumstances and we order claimant reinstated to his position as yardmaster but without compensation for any loss in pay."

Fourth Division Award No. 2976 (O'Brien)

"This Board is of the opinion that Carrier has sustained the burden imposed upon it in the present claim and has proven the charges brought against claimant by substantive evidence of probative value. However, we further conclude that the discipline imposed, disqualification as yardmaster, is unduly harsh under the circumstances of this particular case. We thus order claimant reinstated as yardmaster but without compensation for loss of pay while he was disqualified as yardmaster."

Third Division Award No. 18603 (O'Brien)

"At the investigation Claimant admitted that he did not receive proper permission to lay off. Consequently, there was sufficient evidence to support the finding of guilt. Such finding supports a penalty. Guilt having been found, the issue now arises: Was the penalty imposed unreasonable, unfair, or unconscionable under the circumstances? We believe that the penalty was unreasonable.

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"We, therefore, conclude that while his record should not be cleared of the entry of censure due to the admitted violation of Rule 702, Claimant should be compensated for time lost from his assignment during the period January 21 to February 16, 1969, without interest thereon."

Third Division Award No. 19786 (Sickles)

"Claimant denied that he was asleep while on duty, and states that his Supervisor incorrectly appraised the situation. Other witnesses were unable to either confirm or deny that Claimant was, in fact, awake or asleep at the time.

"It is well settled that this Board shall not attempt to weigh evidence, or resolve conflicts therein in its appellate capacity. There is evidence in the record, even though controverted, to support the charge. Accordingly, this Board holds that the Carrier sustained its finding of Claimant's guilt. However, under all of the facts and circumstances presented, the Board is of the view that a permanent dismissal from Carrier's service was not warranted in this case and is excessive.

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"The Board awards that Claimant shall be restored to Carrier's service with seniority and other rights unimpaired, but without pay for time lost. . . ."

Third Division Award No. 23864 (Vernon)

"We are lastly confronted with the question as to whether the degree to which the charges were proven support the supreme penalty of discharge. It is our conclusion that the Carrier has not shown that discharge is appropriate. It is our opinion that the charge, while serious to a certain extent, is not worthy of permanent dismissal unless accompanied by a past record showing a series of progressively severe penalties aimed at correction. As best we can determine, this is the Claimant's first offense. We are mindful that this Board has been slow to substitute its judgment for that of the Carrier. It is our function not to review penalties in light of what we would have meted out if we were the Carrier but in light of whether the penalty is arbitrary or capricious. It is our opinion that any penalty beyond 120 days is arbitrary and capricious. We therefore, direct the Carrier to compensate the Claimant for all time lost only as a result of the discharge beyond a date of 120 days from the date of discharge. Other items requested in the claim as damages are denied as they are not supported by the Agreement."

Second Division Award No. 8871 (Quinn)

"Dismissal, of course, is the strongest sanction which the Carrier can apply to any employee. The severity of the discipline in this case makes it clear that the Carrier reached beyond the charges brought against Claimant as grounds for its action. While it is true that an employee's employment record may be taken into account by the Carrier in determining the degree of discipline to be administered, the principle is not meant to grant the Carrier license to dismiss for a rule infraction not warranting dismissal in its own right. The point is well stated in Award No. 7708, in which the Second Division (Referee Franden) stated in regard to a charge of failure to protect assignment.

"`Dismissal is the ultimate penalty which is reserved for the more serious offenses. Its application in the instant case is not warranted. It is obvious that the claimant's unenviable record was a major factor in assessing the dismissal penalty. While it is proper to consider an employee's past record, the facts of the instant case do not support dismissal.'

"Progressive discipline is salutary and proper. The Claimant is put on notice he now has two strikes on him. One more and he is out. Based on the record we will reinstate the grievant but without any back pay."

Public Law Board No. 6082, Case 1 (Conway) (UTU/BNSF)

"What is before this Board is the record developed in case handling on the property in which Claimant, not Hayter, was the focus of the inquiry that yielded a sixty day suspension. That is a ton of discipline by any standards, but the collision of two freight trains is equally weighty stuff. And there is substantial record evidence that Claimant failed to use due care."