NATIONAL RAILROAD ADJUSTMENT BOARD

            Award Number 22711

            THIRD DIVISION Docket Number MW-22658


                John J. Mangan, Referee (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Seaboard Coast Line Railroad Company

                              STATEMENT OF CLAUS: "Claim of the System Committee of the Brotherhood that;


                (1) The suspension of Trackman B. F. Dunn was without just or sufficient cause and on the basis of unproven and disproven charges LSystem File C-4 (13) - BFD/12-39 (77-13) J/.

                 (2) The claimant's record shall be cleared of the charges and he shall be compensated for all wage loss suffered as a consequence of the aforesaid suspension."

                                 OPINION OF BOARD: Claimant was assessed a thirty day suspension as a
                                 result of his using "profane or abusive language"
                                 and "uncivil conduct" toward his foreman on December 28, 1976.

                                 The facts of record substantiate that Assistant Foreman Page complained to Foreman Clark that Claimant and another employe were responding to instructions issued in a slow and lackadaisical manner. Foreman Clark called Claimant over to the pick-up truck, in which he was sitting. While each party disputes the language used by the other, it is clear that the conversation became animated and Claimant did reach into the truck cab forcefully grabbing Foreman Clark, holding him for some time.

                                 Beyond these facts, the record contains much conflicting testimony from all parties concerning the actions of the witnesses and Claimant's perception of Foreman Clark's actions that motivated his grabbing the Foreman.

                                 Were it substantiated that Claimant's fear of bodily harm was warranted rather than caused by suspicion and hearsay, there would be reason to consider mitigation. However, the record before us does not justify Claimant's action.
                                  Award Number 22711 Page 2

                                  Docket Number MEd-22658


                The principle that we may not substitute our judgment for that of the Carrier when there is conflicting testimony has been established for many years. Since the record contains adequate evidence to sustain the Carrier's action and the punishment was not excessive, the claim will be denied.

                      FINDINGS: 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

                      The Agreement was not violated,


                                  A W A R D


                      Claim denied.


                                        NATIONAL RAILROAD ADJUSTMENT BOARD

                                        By Order of Third Division


                ATTEST: 4i- Izz &-C-Ielev~
                      Executive Secretary


                Dated at Chicago, Illinois, this 11th day of January 1980.