(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Southern Pacific Transportation Company

(a) The Southern Pacific Transportation Company violated the current Clerks' Agreement when it d and

 (b) The Southern Pacific Transportation Company shall now be required to reinstate Mr. Gales wit insurance benefits unimpaired, full back pay and allowances for each day held out of service, and with all other rights and benefits unimpaired.

 OPINION OF BOARD: Claimant, Mr. L. A. Gales, at the time this claim arose
 was employed as second-shift clerk at Carrier's Homestead
 Yard, Oakland Terminal. Following a hearing and investigation into an in
 cident of August 1, 1974 Claimant was dismissed from all service by letter
 dated August 28, 1974 reading as follows:








                  Docket Number CL-21315


          "For reasons stated you are hereby dismissed from the service of the Southern Pacific Transportation Company.


          "Acknowledge receipt of this letter on duplicate copy and arrange to turn in any Company equipment and passes in your possession."


    The basis for the charges against Claimant were that on August 1, 1974 he allegedly was caught sleeping on the job by the Assistant Trainmaster and also he allegedly failed to roll or check two trains that night, the BAX and the RGSFF before they departed the yard.


    Review of the record reveals an absolute conflict in testimony regarding the question of whether Mr. Gales was sleeping on duty on August 1, 1974. The Assistant Trainmaster D. J. Payne, was in the yard office on August 1, 1974 and testified at the hearing to the following: 1) The Yardmaster tried twice to reach A.M.; 2) Payne went to Gales' office and found the latter in his desk chair, feet on the desk, eyes closed and dozing; 3) Payne called Gales' name loudly twice without receiving a response; on the third yell Gales awoke; 4) Payne admonished Gales for sleeping and told him;the Yardmaster was trying to reach him; 5) Gales apologized for sleeping and told Payne he had heard nothing from the Yardmaster; 6) The Yardmaster called Gales again regarding the RGSFF train for 3:00 A.M. departure; 7) The Yardmaster called Payne about 3:45 A.M. to complain that Gales had checked neither the RGSFF nor the BAX which had departed about 2:00 A.M.; S) Payne confronted Gales at about 4:00 A.M. regarding failure to check th this was because the Yardmaster had not told him they were made up. The testimony of Claimant Gales 1) He was not sleeping at any time while on duty and that when Payne came into his office he was not at the desk but sitting at a chair behind the door; 2) That his feet were on the floor, his eyes open and that Payne did not call his name at all but began immediately to talk with him; 3) That he did not apologize for sleeping and th RGSFF and BAX because no one told him to.


    We have analyzed the evidence in this case carefully, confining our consideration to the points raised and argued on the property. Several interesting arguments were ra Organization as stated supra in the claim on the sole question of "evidence adduced failed to sustain the charges." We do note that Claimant was not informed by the Yardmaster only charge herein, the Organization might have prevailed on appeal. But the

---viz., sleeping on duty and failure to check RGSFF are sup-
 ---other-twocharges-- ported amply if the testimony of Assistant Trainmaster Payne is believed rathe
                Award Number 21377 Page 3

                Docket Number CL-21315


than Claimant's flat denial. The testimony is directly contradictory on the central determinative fact of this case. To sustain this claim we would have to determine the credibility of the two conflicting uncorroborated witnesses.

 It is well established that this appellate tribunal does not assess de novo the veracity of witnesses. Nor as a practical matter is it possible to do so absent opportunity to observe demeanor and testimonial capacity first hand.

 Rather, our review in discipline cases is restricted to determining: 1) Whether Claimant was afforded a fair and impartial investigation; 2) Whvther the charges are supported by substantial record evidence; and 3) Whether, in all of the circumstances, the penalty assessed was so disproportionate to the offense When an employe or his representative alleges contractual violations in a discipline discharge case it is our responsibility to focus on these three areas of appellate review and determine if the managerial action is supported by the record. Notwithstanding our limited appellate scope, the employer in our discipline cases, as in all of American labor-management arbitration both private and public section, bears the burden of persuasion when challenged under the contract with disciplining an employe on insufficient evidence.

 We have reviewed carefully the record before us in light of the foregoing elementary and well established principles. There is no indication in the record developed on the property that the hearing and investigation was other than fair and impartial. The record evidence, if believed, is substantially supportive of the charges against Claimant. We do not resolve credibility issues per se but we can and do determine if evidence is so wholly inadequate that its acceptance by Carrier officials as a sole basis for discipline is palpably unreasonable. We are unable to so conclude with respect to the testimony of the Assistant Trainmaster herein. Finally, in light of the proven charges against Claimant and his overall personnel record, we cannot say that discharge is arbitrary, unreasonable or capricious. Accordingly, we are constrained to deny the Claim.

        FINDOGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
                    Award Number 21377 Page 4

                    Docket Number Ch-21315


        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 28th day of January 1977.

              FEB 2 3 1977 n


J J. .~ER~ P ·~