_ 1








    Parties to Dispute: ( (Carmen),


                  (

                  ( Southern Pacific Transportation Company

                  ( (Pacific Lines)


    Dispute: Claim of Employes:_


That under the current agreement Carman L. J. Matthews hereinafter referred to as the Claimant, was unjustly deprived of h5.s service rights and compensation when he was improperly discharged from service under date of August 4, 1972 after eighteen (18) months service with the Carrier.

        2. That the Carrier be ordered to:


          (a) Restore the aforementioned Claimant to service with all, service and. seniority rights uni:paired and be ccmpensa;;ed for all t:tae lout retroactive to _~.i~ 10, 1972 when he was removed front service pending hearing and subsequently dismissed on August ~; , 1972.


              (b) Grant to the Claimant all vacation rights.


          (c) Assume and pay all premiums for hospital, surgical and medical benefits, including all costs for life insurance.


          (d) Pay into the Railroad Retirement Fund maxim-am amount that is required to be paid an active employe, for all time he is held cut of service .


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 respect i-%rely'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. disputc waived right cf appearance at hearing thereon.

    1


    .-_ Tote 1 Award No. 6604

    age 2 Docket 110. 64-42

    2-SPT(PL)-C1;-'73

    Claimant is charged with violations of Rule 801 of the General Rules,

      and Regulations of the Southern Pacific Transportation Company; the relevant portions

      of that rule read, "Enmloyes i-rill not be retained in the service who are ...

      insubordinate ... quarrelsome or otherwise vicious ...". The Claimant was given

      adequate notice of the hearing, and an adequate opportunity to prepare his defense,

      and to cross-examine all witnesses. -


      Carrier introduces generally consistent evidence concerning the incident on July 10, 1972, during which Claimant admits to having struck Foreman Rose. The only witnesses to the incident are the participants themselves, and their testimonies conflict as to the important questions of provocation and self-defense. Claimant was questioned immediately after the incident, and, at that time, did not assert that he was acting in self-defense of his person, but only that "... no man can treat me like that ...", and that Foreman Rose had grabbed the telephone from his hands. These statements do not indicate that Claimant acted in self-defense, as just:~fication for his admitted attack upon Foreman Rose. Claimant had an opportunity to introduce some evidence to verify his contention that Foreman Rose grabbed the telephone and terminated his unfini shed call to Mr. Jerry Brice. Employes could have presented Mr. Brice to prove that the call had been abruptly terminated, but failed to coo so.


      '.j*he standard. of proof i n a hearing to determine the val id ity of a dJ_scharre requires Carrier to show substantial evidence in support of its action. "0ub:;tantia.l

      ~vid.ence means relevant evidence as a rsascnabla mind might accept as zdequa. t·.: to support a conclusion." Ccnsol. Ed.. Ccmn. vs. LFbor. Rcard, 305 U.S. i9'1,22~3. The testimony at the hearing -rras sufficient to ;:e-t t1~is test, arid Awards fro!!? every Division of 'uais Board do not permit us to substitute our judo:ient ror that of the Carrier wt:ere there is substantial evidence of the offense committed. (A"7a.rd. FO. 6281, Second Division McGovern, 1972) . It is for the trier of the facts to determine the credibility of the witnesses, and the conflicts in the testimonies of Claimnnt and Foreman Rose have been resolved by the hearing officer in favor of Carrier. Mere resolution of these conflicts in favor of Carrier is not sufficient grounds to sustain Employes' claii~i, and. thereby reverse the hearing officer's decision.


' -The testimony at the hearing produced substantial evidence of a violation
      of Rule 801. The evidence was not adequately refuted by the Employes and the finding

      of the hearing officer is reasonably based upon the record. The claim will be denied.


                            A W A R D


            Claim denied..


                                  NATIONAL RAILROAD ADJUSTMENT BOARD

                                  By Order of Second. Division


      Attest: E.Yecutive Secretary


National Railroad. Adjustment Board

 Rosemarie rrasch - Administrative Assistant Dated at Chicago, Illinois, this 29thy of November, 1973·