FA-m 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6432
 SECOND DIVISION - Docket No. 6284
 2rSP T(PL)-CMy;' 73
 The Second Division consisted of the regular members and in
 addition Referee Irving T. Bergman when award was rendered.*
 ( System Federation No. 114, Railway Employes'
 ( Department, A. F. of L. - C. I. 0. .
 Parties to Dispute: ( (Carmen)
 (

Dispute: Claim of Employes:














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

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

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Form 1 Award No. 6432
 Page 2 Docket No. 6284

Claimant disputed the correctness of pay received by him. After several attempts to straighten it out on his own, he went with his Local Chairman to the Master Mechanic's office on October 29, to check the records again. While there, it is alleged, claimant became loud and quarrelsome and used vulgar language in the presence of two male clerks, in the vicinity of other office personnel including a female.

 Rule 801 of the General Rules and Regulations states that, "Employee will -not be retained in the service who are --- quarrelsome ---. Courteous deportment is required of all employes in their dealings with --- each other -. Vulgar language is forbidden ---."

 Pursuant to Rule 39, of the Agreement a disciplinary hearing was held on November 9 and November 11. Claimant was represented by his Local Chairman, Locomotive Carpenter and Freight Carman. No objection was made as to the notice for the hearing, the timeliness of the hearing or to the fairness of the hearing. After the hearing, claimant was notified by letter dated November 25, that he was dismissed on the basis of the evidence adduced at the formal hearing.

 Rule 38 (b) of the Agreement states that, "A claim or grievance may be presented in writing provided said written claim or grievance is presented within sixty (6J) days from the date of the occurrence on which the claim or grievance is based."

 Within the sixty days referred to in Rule 38 (b), the matter of restoring claimant to his job was discussed as evidenced by letter dated December 18, from the Superintendent to the Local Chairman, Employes' exhibit D. The letter acknowledged the discussion with the Local Chairman and promised to investigate and advise. By letter dated January 27, to the Local Chairman, the Superintendent denied the request for reinstatement, "at this time", and requested that the Local Chairman call for a conference at a later date, Employes' exhibit E. By letter dated May 7 to Local Chairman, the Superintendent denied the request for reinstatement after a conference with a representative of the Organization and the claimant, Employes' exhibit F. By letter dated 5-8, the Organization representative wrote to his Local Chairman stating that at the conference held the day before, claimant was offered reinstatement on a leniency basis but refused it, saying that he was entitled to full back, pay; would not sign any papers, and after thanking the Superintendent and Master Mechanic walked out, Employes' exhibit G. The claim was then formally presented in writing by letter dated June 8, Employes' exhibit J. Carrier answered, by letter dated June ll, -.'invoking Rule 38 (b) as a bar to the claim and adding, without prejudice to the defense of Rule 38(b), that the dismissal was justified on the merits, Employes exhibit K.

 We note that Rule 38 (a) of the Agreement provides for informal review of a grievance. Assuming, for the sake of discussion, that the dismissal was discussed informally on behalf of, "An employe who considers himself unjustly treated, ---.", as stated in Rule 38 (a), it might be argued that the formal claim in writing pursuant to Rule 38 (b) was timely, within 60 days after the grievance t was denied. We do not make a finding 0ith regard to this but will accept the
 corm 1 Award No. 6432
 Page 3 Docket No. 6284

 ( 2-SP(PL)-CM-' ?3

 gument hypothetically in order to review the merits.. We believe that this method yr approaching the result, while it may be unusual, will provide a basis for assuring the parties that all aspects of this case have been fully considered.
claimant was quarrelsome and used vulgar language as alleged but also that with =
 the intervention of his representatives he was given full opportunity to assert
 by way of defense what may have motivated or provoked his outburst of vulgarity.
 As his own witness, he was evasive and unconvincing. His representatives cross
 examined the witnesses with the skill of a "Perry Mason." They obtained an
 adjounment to require Carrier to produce time card records which claimant argued
 that the Carrier had refused to show to him. The claimant called his Local Chairman
 who had been present, to testify as to the words used. When questioned by claimant,
 the Local Chairman finally had to admit that the vulgar words were uttered,
 although he could not recall who had made the vulgar remarks. When given -the
 opportunity to call the office female employe who was present at the time as a
 witness, claimant preferred not to do so.

 Accordingly, and without making a specific finding on the issue of compliance with Rule 38 (b) of the Agreement, there is no basis to disturb the result_which-was based on substantial evidence_produced_at the hearing. --_~______._ _ ,

          Claim denied.


                        NATIONPL RAILROAD ADJUSMENT BOARD By Order of Second Division


Attest: ,
          Executive Secretary


Dated at Chicago, Illinois, this 11th day of January, 1973.