(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Northwestern Pacific Railroad Company

(1) The dismissal of Magin Beltran from service for alleged violation of Rule '801 was capricious, arbitrary, without just and sufficient-cause and on the basis
(2) Mr. Magin Beltran be reinstated with seniority, vacation and all other rights unimpaired and wage loss suffered in accordance with Rule 25.

 OPINION OF BOARD: Claimant was dismissed from service on September 20,
 1973 after an altercation with his foreman. He was dismissed by a letter dated September 20, 1973 which specifically charged him with being indifferent to his duty as instructed by his foreman, with acting in a quarrelsome or other vicious manner towards his foreman and with threatening his foreman and using profane language. This conduct was al_leeged to be in violation of Rule (M) 801 of Carrier's Rules and Regulations, which reader pertinent part:



In accordance with Rule 25 of the schedule Agreement, Claimant requested a hearing; the hearing letter of October 11, 1973, the dismissal was affirmed. It is noted that in the letter setting the date for the hearing, Claimant was also charged with additional misconduct directed at his foreman and a roadmaster which allegedly took place when the two officials were attempting to dismiss Claimant on the afternoon of September 20th.


Petitioner makes a series of arguments which must be evaluated. Principally, the point is made t the investigation neither justifies the dismissal nor supports the charges placed against Claimant. Petitioner argues vigorously that a substantial portion of the testimony at the investigation was directed towards events subsequent t September 20, 1973) and should not be considered.' It is also contended that the profanity which mig Laughlin (and it was denied) was not per se justification for discipline much less discharge; it was argued that an individual should not be found guilty of a charge of misconduct bailed on the testimony of one witness and further that the Superintendent who rendered the decision after the hearing was not present at the hearing and therefore was not qualified to make the critical findings with respect to credibility. In its able brief-and arguments, the Organization argued that the entire dispute had been magnified out of all reasonable proportions: it started with Claimant eating a sandwich and ended wi being a thief.

 Carrier, arguing in support of the discipline accorded Claimant, first states that Claimant was paid for the entire day of September 20th, that is until 3:30 P.M., and his misconduct while being dismissed occurred while he was still an employee and was directly associated with his prior m a continuing violation. Carrier argues that there is nothing deficient in the testimony of only one witness as the determining factor, particularly in altercation cases. W finding argument raised by the Organization, Carrier states that not only was this issue improperly raised for the first time in Petitioner's submission but that it was property for hearing officers to make a final report and recommendation after hearing which is then renders the decision. Carrier concludes that Claimant was found guilty of multiple offenses, including insubordination, indifference, use of profanity and violence toward his supervisors, all of which justified his dismissal; in addition he had a bad record including a prior dismissal for a similar offense.

 Although, as Petitioner states, this dispute started innocutiusly over the issue of Claimant eat it rapidly became a more serious matter, transcending the triggering incident. We cannot ignore, for instance, the conduct of Claimant during the process of dismissal on the afternoon in question; he remained under pay for the entire d be noted, however, that we deem the evidence of misconduct for the


morning incident sufficient for the conclusion reached by Carrier, without the added problems attendant upon the dismissal. With respect to the Organization's apparent condonation of the language used by Claimant, we do not agree; although the language in itself, though profane, was not of the extremely profane variety, it was beyond the normal shop talk level. More important, we view Claimant's language used to the Foreman as deliberately provocative and defiant which is more significant than the words themselves. We do not agree with Petitioner's position with respect to the "one witness" theory; in most altercation cases there are only the two participants as witnesses. We are not precluded from m alone (See Awards 14356 and 15713 for example) in such cases, but at the same time judgments as to credibility and the weight of the evidence are reserved to the hearing officer rather than to us. We also reject the argument as to the hearing officer not signing the final decision of Carrier; the argument was both untimely raised and unsound in this case.

 A review of the testimony at the hearing reveals substantial evidence to support the affirmation of very least in the morning incident the evidence indicates Claimant used profanity, exhibited a totally disrespectful attitude to his foreman and refused to submit to reasonable authority and instruction. The afternoon confrontation c Carrier in 1965 and had twice been admonished for, in one instance, profane and vulgar language to a foreman and in the other for refusal to follow instructions. In add (he was reinstated six months later). It is obviously appropriate for an employe's past record to be considered in the determination of penalty for misconduct, once the matter of guilt has been decided.

 In this dispute there is substantial probative evidence in support of Carrier's conclusion; as a matter of long standing policy we will not substitute our judgment for that of the Carrier in evaluating such evidence. The was neither arbitrary nor capricious, particularly in view of Claimant's past record, and we will no
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That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an







                      By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 31st day of January 1975.