Form 1 NATIONAL RAILROAD ADJUSTMNT BOARD Award No. 85665
 SECOND DIVISION Docket No. 8541
 2-WP-FO-' 81
 The Second Division consisted of the regular members and in
 addition Referee John B. LaRocco when award was rencered.
 ( International Brotherhood of Firemen and Oilers
 (
 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 eniploye or eniployes 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.



f?'C''" _
 ._ _ __ ,. . , .. _. ... _ _ . _ ._ .._ ~.;_... ~;~ c a i'ebru-rv ~__U,
 26 and March` 1, 1979. Pursuant to notice, an investigation was held on March 14,
 1979 in. Sacramento, California.
on the first cr`_ -~· b . ` _ _ -^~!~ °~ -> ~_-z°z~:e ._ . ... w_ >>ty: c , . " , =_
 v: ~ i_ t ~ .i .:" , c resulted ircm a :~:,iTIor misunderstanding between the
to the LC,Iu:.__,~:s :'_3

but argues that tile penalty of discharge was an abuse of tL.anagerial discretion.
 Th.e carrier, on the other hand, argues that the record is replete with substontial
 evidence demonstratir- coat the claimant ::as solely responsible for improperly
 Form 1 A.;;.crd .-:;.-yJ
 Page 2 Docket No. 8541
 2-WP-FO-'81

 servicing the locomotive on February 27, 1979. The carrier justifies the discharge by pointing to claimant's poor prior attendance record .
While there are a few conflicts in testivony, the basic facts are undisputed. On February 27, 1979, the operating crew refused to accept engine WP 709 because there was oil on the steps and ~.;~1.~:;-._.>s =posing a safety hazard and the engine v=as missing a seat box. Part of the claimant's assignment for the day was to completely service the locomotive. The Diesel Shop Foreman had instructed the claimant to procure a seat box from the blacksmith's shop. However, there were no seat boxes in that shop and claimant, unable to find his fore=man, went home knowing the engine lacked a seat box. A seat box was available in the service shed, but there is no indication the claimant knew it was there. Because the locomotive was not ready for service, operations were delayed approximately fifteen minutes. The primary factual dispute concerns the time at which the foreman told the claimant to collect the seat box froze the blacksmith's shop. The foreman testified the order came in the morning giving claimant ample opportunity to ascertain if a seat box was available, and if not, to inform his foreman. Claimant stated he did not receive the seat box instruction until rear the end of his shift. Also, claimant testified that there was no oil on the engine at the time he delivered the locomotive to the tie-up track. Therefore, according to the organization, the oil must have been tracked by another employe. As to the second charge, the claimant himself honestly completed his time cards showing he was tardy on the three work days.

 We do not have the power to evaluate the credibility of witnesses or to resolve factual disputes. The hearing officer, who observes the demeanor of witnesses can best decide how much weight to attach to particular testimony. Thus, if the hearing officer could reasonably conclude that the diesel foreman truthfully related the events on February 27, 1979, we will not upset his determination. Here, the foreman's testimony concerning the improper service performed on locomotive WP 709 is reasonable. Because the foreman told the claimant early in his shift to pick up the seat box at the Blacksmith's shop, any confusion over the location of the seat box could have been cleared up before claimant went off duty. The claimant's contention that someone tracked oil on the engine walkways is too speculative. The hearing officer could reasonably resolve the factual issues against the claimant. Thus, there is substantial evidence to prove that the claimant failed to properly service the engine.

 There is no doubt that the claimant was tardy on February 20, 26 and March 1, 1979. Each employe has an obligation to zealously protect his assignimnt regardless of whether or not the tardiness seriously 11.-.»:loers railro-d operations. Second Division Award No. 8149 (Dennis). In assessing discipline, the carrier may review the employe's prior attendance record. Second Division Award No. 77~-
 =~ (Weiss). ~Ic--:ever, t:-,e penalty still must be coranensuraue with the proven offense. Even though the carrier has proven both of the charges here, the penalty of discharge is excessive due to mitigating circumstances. Because the claimant tried to inform his foreman about the missing seat boa and because he honestly completed his t'in·,e card, lie should be reinstated with seniority unirigaired but without back pay and without any of tile other benefits requested by the claimant.
 Form 1 Award No. 8565
 Page 3 Docket No. 8541
 2 -WP-FO-' 81





                            By Cfrder ef Seccnd Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 B ·.t'`,~ ~,r~.r'~»:~,'.--z.4_.-A
    .,r~.,.ra;. fir'

    .-,"-Ro7",emarie Brasch - Administrative Assistant


Dated at Chicago, IlIllinois, this h day of 1. 1
                    > 7t ay o January, ~8 .