(Ruben Montiel and Leo Lucero PARTIES 7n DISPUTE:

STATEMENT OF CLAIM:

 1. The dismissal of Ruben Montiel and Leo Lucero from service on November q, 1978, was without just and sufficient cause., was discriminatory arbitrary, capricious.. and unreasonable in abuse of the discretion of the Carrier and based upon unproven and unsupported charges.

 2. The formal investigation held on the question of the dismissal of Ruben Montiel and Leo Lucero was a sham and mockery, deprived the employees of their rightsp was not pursuant to the Collective Bargaining Agreement and was otherwise a deprivation of rights of said employees.

 3. The Union did not fairly and adequately represent the employees violating its duty of fair representation, including,, but not limited to failing to prepare for the formal investigation representing adverse interests at said investigation where there was a clear conflict of interests and otherwise not represe
4. Leo Lucero and Ruben Montiel should now be reinstated with seniority vacations and all other rights and benefits unimpaired and be reimbursed for losses, wages of the Agreement between the Carrier and the Union.

 OPINION OF BOARD: The record shows that claimants were formerly employed
 as section laborers on Carrier's Pueblo Section. During
 the afternoon of. October 31, 1978 while on duty, claimant Leo Lucero and
 another laborer, K. R. Meek., engaged in two minor altercations and were
 separated by other crew members.

 After the crew finished the day's work, had returned to the headquarters point, and at least some of occurred, which could aptly be described as a brawl. On November 1, 1978), the two claimants herein., and laborers K. R. Meek,, L. J. Martinet P. J. Cordova and J: Mondragon were notified in writing, in accordance with the provisions or the applicable collective bargaining agreementv to attend a formal investigation as Principals to be held at 10:00 A.M.., Thursday'v November 2, 1978:










The formal investigation was held as scheduled, and a transcript has been made a part of the record. On November 7, 1978, the claimants herein and laborers K. R. Meek, L. J. Martinez and J. Mondragon were notified of their dismissal from the service. Following their dismissal from the service, claims in behalf of the two claimants were progressed in the usual manner by representative of the Brotherhood of Maintenance of Way Ekployees,·the duly authorized representative of the craft in which claimants were formerly employed, to the highest officer of the Carrier designated to handle disputes, requesting that claimants be restored to the service with sen that they be compensated for all wage loss suffered from November 1, 1978. The claims were denied at each level of appeal by the Carrier.

 The Carrier contends that Parts (2) and (3) of the claim submitted to the Board were never prese on the property as required under Section 3, First (i) of the Railway Labor Act. The record before the Board bears out the Carrier's contention in this respect, and these
If Part (2) of the claim were properly before the Board, it would be denied. We have studied the transcript of the investigation and find that it was conducted in a fair and impartial manner, and in accordance with the provisions of the collective bargaining Agreement. Claimants were present throughout the investigation, were permitted to present witnesses if they desired, and were'represented as provided for in the Agreement. The Board had held that:

and:



        If Part (3) of the claim were properly before the Board, it would be dismissed as the Board is without jurisdiction of disputes between employes and their Organization.


        As to Parts (1) and (4) of the claim, the Board finds that there was substantial evidence adduced at the investigation to support the discipline imposed on claimants. While there were some conflicts in the testimony, it is not the function of this Board to weigh evidence, attempt to resolve conflicts therein, or to pass upon the credibility of witnesses. Such functions are reserved to the hearing officer. The Carrier's rules forbid employes to:


                " . . . . enter into altercations with any person."


        and rive notice that employes who are:


                "careless of the safety of themselves or others . . . . or guilty of acts of . . . . willful neglect of duty, inexcusable violation of the rules . . . . will be subject to dismissal."


        The Carrier is not required to continue in its service employes who engage in altercations or brawls.


        FINDINGS: The Third. Division of the Adjustment Board, after giving the

        parties to this dispute due notice of hearing thereon, and upon

        the whole record and all the evidence, finds and holds:


          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 L


                Parts (1) and (4) of the claim are denied.


                Parts (2) and (3) of the claim are dismissed.


                                    NATIONAL RAILROAD ADJUSTMENT BOARD

Fy order of Third Division r
          ATTEST:JW


          Dated at Chicago, Illinois, this 15th day of December 1980.