(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The dismissal of Trackman-Driver R. E. Curtis on October 3, 1977 was without just or sufficient cause and was exceedingly disproportionate to the offense with which charged (System File B-1737).

 (2) The claimant's record shall be cleared of the charge and he shall be paid for all time lost from dismissal date of October 3, 1977 to the date of his reinstatement on January 13, 1978."

 OPINION OF BOARD: Claimant, a trackman-driver, with 5 months of service,

The incident which gave rise to Claimant's dismissal occurred on Friday, September 30, 1977. Claimant was working in Tie Gang T-1-10, preparing to load and move some equipment from Carthage, Missouri to Fairland, Oklahoma. The Assistant Roadmaster assigned the Claimant several jobs, one of which was the delivery of a 55-gallon drum of hydraulic oil to a mechanic. The Assistant Foreman instructed Claimant to deliver the oil at approximately 3 p.m. and twice thereafter checked to see if the delivery had been made. Claimant testified that he, "wasn't allowed time to do everything that had to be done."

 At approximately 7:30 p. m. the Assistant Roadmaster observed Claimant in his personal truck, preparing to leave. The Assistant Roadmaster asked Claimant for a third time if he had delivered the ol-L. The two men exchanged unfriendly words; Claimant got back into his truck and, according to the testimony of the Assistant Foreman, "Went over and unloaded the drum on the ground and returned, stopping the truck by sliding it." The Assistant Roadmaster then told Claimant that he would no longer be his trackman-driver. Claimant gave the Assistant Roadmaster the keys to the company truck and his credit cards. He then got back into his pick up truck, revved his engine and sped off, spewing the Assistant Roadmaster and bystanders with gravel and dirt. The Assistant Foreman suffered a cut on his forehead and a bruised
 knee. ._


When Claimant reported for work on October 3, 1977, he was told that he had been dismissed from service for violating Rules 175, 176, 652, and paragraphs B and C of the General Notice of the Rules of the Maintenance of Way and Structures Department, which read as follows:

        "General Notice (B): Obedience to the rules is essential to safety."


        "Paragraph (C): To enter or remain in the service is an assurance of willingness to obey the rules."


        "175. Civil, mannerly deportment is required of all employes in their dealings with the public, their subordinates, and each other. Boisterous, profane vulgar language is forbidden. Courtesy and attention to patrons is required. Employes must not enter into altercations with any person, no matter what provocation may be given, but will make note of the fac report to their immediate superior."


        "176. Employes who are negligent or indifferent to duty, insubordinate, dishonest, immoral, quarrelsome, insolent or otherwise vicious, or who conduct themselves and handle their personal obligations in such a way that the railway will be subject to criticism and loss of good will, will not be retained in the service."


        "652. Employes who are careless of the safety of themselves or others will not be continued in t


Pursuant to the Organization's request, a formal investigation was conducted on November 7, 1977. The charges were confirmed at the investigation. On January 4, 1978, the Carrier sent a letter to the Organization which contained an offer to recall Claimant to service as a trackman. Claimant returned to service on January 13, 1978.

 At the time of the incident, Claimant had approximately 5 months of service. He held seniority rights as a trackman, a Class 1 employe. He had been assigned on September 27, 1977 to the trackman-driver position, Class 2 position, but had not yet established seniority in Class 2 in accordance with the provisions of Rule 2(b)(1) which provides:
                    Award Number 22913 Page 3

                    Docket Number MW-22628


        "An employe shall establish a seniority in other than class I retroactively as of the date assigned a position or vacancy in such class after the employe has performed service on 20 working days in such class without being disqualified."


The claim before this Board is that the dismissal was without just cause and disproportionate to the offense. The relief requested is reinstatement with back pay, all rights unimpaired. The claim is denied. Despite the allegation of an excessive work load, the actions of Claimant on September 30, 1977, which he admitted to at the investigation, were sufficient grounds for the imposition of discipline. The discipline, which amounted to a three-month suspension, was not disproportionate to the offense. The record reveals no mitigating circumstances which would warrant a modification of the discipline assessed against Claimant.

        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

        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 22nd day of July 1980.