Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8553
 SECOND DIVISION Docket No. 8006
 2 -L&N-CM-' 81
 The Second Division consisted of the regular members and in
 addition Referee Gilbert H. Vernon when award was rendered.
 ( Brotherhood Railway Carmen of the United States
 ( and Canada
 Parties to Dispute:



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 June 21, 1934.

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

At the time of dismissal, claimant was employed as an upgraded Carman with a company seniority date or March 23, 1976.


Form 1 Award No. 8553
 Page 2 Docket No. 8006
 2 -L&.N-CM-' 81

 The charge relates to the fact that the claimant was found by Mr. R. L. Beard, Foreman, and J. S. Combest, Special Agent, in his car during his tour of duty. This is not disputed by the claimant. However, the claimant does dispute Beard's and Combest's testimonies that, in their opinion, claimant was sleeping while in his car.

 The carrier argues there is substantial evidence to support the charge. T':iey point primarily to the testimony of Beard and Combest. Foreman Beard testified that he began looking for the claimant when several attempts to reach him on the radio failed. He looked several places before finding Mr. Hatchett in his car. He then contacted Mr. Combest and in the five minutes that it took Combest to arrive he continued to observe the claimant. During this period, Mr. Beard was convinced Hatchett was asleep because "he was laying back in his car seat without moving". After Combest arrived, the men went to the car window where they shined a light in the claimant's eyes. According to Beard, when they shined the light in the claimant's eyes they could see he was asleep. After claimant awoke, Beard testified the claimant said "I'll admit I was dead wrong". The testimony of Special Agent Combest collaborated that of Mr. Beard in respect that Hatchett appeared he was asleep and that Hatchett admitted he was "wrong". Further, Combest testified Hatchett did not react when Beard shined the light on him and that Hatchett was leaning back in his seat with his hat pushed over his face.

 The carrier also argues that the inability of the claimant's supervisor to reach him on the radio should also be taken as evidence that he was asleep. It is customary for a carman to be in radio- contact with the lead carman during his shift. Mr. J. W. Pace, claimant's stp ervisor on the night in question testified that he could not contact the claimant on the radio. He, as Beard did, indicated no trouble had been reported that night with any of the radios, including Hatchett's.

 The claimant defends himself by contending he was not asleep. He was simply waiting in his car because he was prevented from attending his duties. This was so, according to Hatchett, because cars were being switched on tracks that he had to cross to attend to his duties. Regarding his supervisor's inability to reach him on the radio he claimed that the radio didn't work and he couldn't inform his supervisor because it didn't work. He also said he was on medication (Darvon) that night but that it didn't make him drowsy.

 In reviewing the record, the Board recognizes the fundamental conflict between the testimony of the claimant and carrier witnesses Combest, Beard and Pace. However, it is not our function to resolve these conflicts, assess the credibility of the witnesses, or to weigh the evidence. Our function, as an appellate tribunal, is to review the record as a whole to determine if the charges are supported by substantial evidence. In doing so it is our determination that there does in fact exist substantial evidence to support the charge that Mr. Hatchett was asleep while on duty. The testimony of the claimant is unsubstantiated and is seen as merely a self-serving assertion. On the other hand, the testimony of Combest and Beard collaborated each o-'1cr, in addition to being of a certain and particularly plausible nature. For instance, Mr. Combest testified that he could say beyond a shadow of a doubt that Mr. Hatchett was asleep.
 Form 1 Page 3

 Award No. 8553
 Docket No. 8006
 2-L&N-CM-'81

 In reviewing the record as to whether dismissal is an appropriate penalty, the Board makes note of both the claimant's past record and his short tenure with the carrier. The record reveals the claimant had been found to be asleep on duty several other times and had been warned twice in writing that sleeping on the job would not be tolerated.

 In view of this and in view of the claimant's short tenure with the carrier, it cannot be concluded that dismissal is arbitrary or capricious. Discharge ha:; been upheld under similar circumstances before. See Second Division Award 4629, wherein it was stated:

 "Sleeping while on duty is generally regarded as an offense which justifies discharge and, since the claimant had only three years service with the carrier, the penalty of discharge cannot be considered excessive."

 A W A R D

 Claim denied.

 Attest: Executive Secretary
 National Railroad Adjustment Board

 By

 ,/'l~,bsemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 7th day of January, 1981.

NATIONAL RAILROAD ADJUSTrENT BOARD

By Order of Second Division