,~(Advance copy. The usual printed copies will be sent later.)
 ~_,s 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6402


          The Second Division consisted of the regular members and in addition Referee Irving T. Bergman when award was rendered.


                ( System Federation No. 6, Railway Employes'

                ( Department, A . F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)

                ( Chicago, Rock Island and Pacific Railroad Company


Dispute: Claim of Employes
    (1) That under the controlling Agreement, Carman J. W. Elliff was unjustly suspended from the services of the Carrier for ninety (90) days.


    (2) That accordingly, the Carrier be ordered to compensate Cancan J. W. Elliff for all time lost in this ninety (90) days.


Findings:
    The Second Division of the Adjustment Board, upon the whole record and all evidence, finds that


The carrier or carriers and the employe or employes involved in this dispute a: respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

    Parties to said dispute waived right of appearance at hearing thereon.


This is a discipline case in which the Organization protested the decision and penalty claiming- that it was based upon the unsupported testimony of claimant's supervisor, the Train, Yard Foremen. In Employes' Sutbnission, under Position of Employes*,, p 2-4, no protest was made concerning the notice or conduct of the hearing under Rule 34 of the Agreement. Objection was raised to the introduction of testimony at the hearing regarding an incident which occurred two years earlier between the claimant and the Train Yard Foreman.

 The record of the hearing disclosed that while the claimant and two other carmen were working on a car, the foreman complained that the work was progressing too slowly. The foreman testified that claimant told him to watch out for himself rather than to watch him. When the fore=an asked claimant to clarify this, claimant answered that the foreman kne-i what he meant. The foreman then volunteered that he understood the answer because two years earlier, when the foreman had problems with him, the claimant h a told. him to watch his step because a brake shoe might fall off a box car on his h~ _.
 Form 1 Award No. 6402
 Page 2 Docket No. 6224'

                                                2-CRI&P-CM-'72


The foreman then testified that when he returned to observe the work a little later, claimant had to go to the rest room. The foreman took him there and back to the work site in his truck. The foreman testified that during this ride, while they were alone, claimant stated to him thav he really meant what he had Amid about the brake shoe tlling on the foreman's head and that the foreman better vr,tch out. Also that claimant told foreman during the ride that if the foreman had anything to do with the firing of any carman, he would personally see to it that the foreman would leave, "one way or another." The foreman also testified that the next day, claimant asked him what bar he hung out at saying that, "he just wondered."

 Claimant testified that the foreman's entire statement eras a lie. His own version was as follows: The foreman carne to the work site nervous and upset. Claimant who was working alone on the opposite side of the car but trying to listen, heard the foreman tell the other carmen that he had been threatercd about having a brake shoe fall on his head, that be wasn't "afraid of. any roan T,;al_king", that he knows, "ho;r to handle you men". Claimant testified that the fore-an then came arcur-3 to him and

 because the foreman either did not like the say claimant eras looking at bin, or knew -

 that he didn't care for the gray the fore-nan leas treating the men, the foremsn tried
 to get claimant, "to say something that would be incrininating". Clntnant then asked
 the foreman to clarify what he meant by, "threat", but foreman replied that it Ims,
 "not worth discussion".

 When asked by the master mechanic conducting the hearing what he meant by his statement about the way the forer-an treated the men, claiaat testified that the foreman had an attituic of, "a Godlike power over each and every man under hi<-1", that, "iihen I say move-you better move:", and that "he looks at himself as being far superior to anyone else around him".

 One of the carnen echo was working with claimant at the tire, testified in detail about the progress of the work and the foreman going over it with the-_2. The witness stated that at one of the tees that the foreman came back to the work site, ttr foreman spoke of threats about brake shores falling on his head but cone scared him, "that he had bezn arc-:id men like us before aril he would see men like us in the future". The witness to .tified that the foreman was in, "a pleasant disposition and sailing in a friendly manner", when he spoke of this. Further, the witness stated that the foreman started to leave, but came back, and standing with the witness and the other car--en,, callO:d claimant over and said to claimant, talkin3 about the brake shoes; "are you threateniuS me? If you are, I have Louis and Ted here by cue". C1.°int a!a-.~cred, "no", and went back to his oiling. The witness testified, that the fore::,an wns no longer in, "an eased manner", and "Icoked as if he kms sericr$". This witness verified t':st claimant and foreman had driven off in the truck toward the locker room.

    During the hearing, tyro representatives of the claimant were present arra


participated. One of them protested that the hearing was not being held. pursuant
 to Rule 34 of the Agreement. He also protested that the fore-man's testimorrj of
 events which occur°r c3 ti-·o years earlier h.al no bearing on this hearing. Peth
 representatives stated test they understocwi that they could provide any additional C ,
 information and could recorP. any protest during the hearing.
        .


Form 1 Award No. 6402
 P-ge 3 Docket No. 6224
 2-CRI&P-CM-' 72

    Claimant testified that he was fafliar with Rule "N" of Form G-147 Revised

which provided, in part that, "EaVlayes must not be: (3) Insubordinate, (6) Quarrelsome or otherwise vicious".

 We find nothing wrong with the notice and conduct of the hearing. The notice was time7,ql, specific as to the charge and advised claimant of his right to be represented and to produce witnesses. He was represented at the hearing and did produce a witness. Full opportunity-was provided at the hearing to offer testiaony or information, to question witnesses and to state any objections. We do not c onsider the foreman's testinoxW of the incident two years earlier as entitled to any weight in arriving at the decision.

 An we said in our Award No. 6372 decided recently, when it is one man's word against another, we cannot sustain a claim simply because the claimsnt denies the charge. If the one who conducted the hearing chose to believe one ran as againot the otter, we will not upset his decision if there is evidence to srpport it. No claim appears in the record before us that the decision wns made arbitrarily or in bad faith, and we do not find this to exist, frcm reading the record of the hearing.

 The testimony of the clair-ant at the hearing ahcr.fdd that he disapproved of the foreman to the extent he might have cede the threat. Rule "n" of Forn G-lk=7 Pevised, was designed to prevent personil antagonims on the job by requiring, "courteous deportment of all employes in their dealings with--their subordinates and each other."

 In evaluating the testimony of the claimant and the foreman, acne light is shed b, .he testimony of claim-Ant's witness who contradicted the c)-al=-ant in de0cribins the foreman's earxnr an-*1 attitude. It is possible to conclude fro-,: his testimflm that the goremsn had decided to become serious after being threatened while riding in the truck with the clair-ant and to ask in the presence of the other tivro caraen, if claimant was threatening him.

 We believe that there is sufficient evidence so that we will not upset the decision, in this case. See Second Division Award No. 6281.

 It is possible, however, that the degree of the penalty was influenced by the form's reference to events of two years earlier which was not reported at that tine. We believa that the same result would be accomplished by reducing the term of suspension frcn service to the period from October 9, 1970 until December 24, 1970.

                        A W A R D


    Claim is sustained except as stated above.


                        NATIOI0L RAILRUAD ADJUSTMENT BOARD By Order of Second Division


A+test : x f· 09
            ~~.C·,il

            E~xecutave Secretary


Dated at Chicago, Illinois, this 16th day of November, 1972.