NATIONAL RAILROAD ADJUSTMENT BOARD

              Award Number 23389

              THIRD DIVISION Docket Number CG-23342


                Josef P. Sirefman, Referee


              (Brotherhood of Railways Airline and Steamship Clerks
          ( Freight Handlers Express and Station Employes PARTIES TO DISPUTE:
                      (Chicago and North Western Transportation ConpanY


                        STATEMENT OF CIA324: Claim of the System Committee of the Brotherhood (01.-8993) that:


          1. (terrier violated the Agreement Rules particularly Rule 21P when under date of December 11, 1978 it issued a notice wherein it dismissed from service Mr. R. J. Agiasj, Accounts Payable Accountant at Ravenswood.9 account investigation held on December 4y 1978 and

                     2. Cattier shall nor be required to reinstate Mr. R. J. Agins with all rights unimpaired and make him whole for all losses is monies concerning wages and fringe benefits.

                     OPINION CF BOARD: Claimant Richard J. Aginsp Jr.,, an Accounts Payable
                     Clerks was served with a Notice at hearing dated November 28, 1978 concerning his responsibility fair:

                "1) directing foul and abusive language at Mr. M. H. Eischenj, Manager of Expearlituresj, at approximately 3:30 P.M.x November 280 1978; 2) issuing threats on Mr. Eischea's family and threatening to kill Mr. Eischea at approximately 3:30 P.M. on November 28, 1978; and 3) assaulting Mr. &ischen when you struck him several times at approximately 3:30 P.M.,9 November 28, 1978."


          A hearing was held on December 4e 1978 and Claimant was dismissed on December 11s 1978.

           A review of the record before this Board establishes that Claimant was afforded all the procedures provided by. the contract. There is a conflict is the record with Claimant stating that he was the one verbally abused and physically assaulted by Mr. Eischea. As was stated in Award 22721:

                "Once again this Board is asked to review conflicting evidence and determine that the Claimant's version of a disputed factual circumstance be accepted and that the Carrier's version be rejected. We have noted in numerous Awards that this Board is not constituted to make such determinations.

                                Award Number 233$9 Page 2

                                Docket Number CL-23342


                  "Issues of credibility must be determined by those who received the evidence and testimony and we would have no basis for substituting our judgment in that regard. Obviously if a record is devoid of my reasonable basis fax a factual conclusion., then it is

          .- incumbent upon us to correct that impropriety. Buts
                  such is not the case here."


          In this instance it cannot be said that the record is "incapable of supporting the (terrier's conclusions" (same Award). Claimant came to Eischea's office unbidden to complain about a letter of reprimand fax using public telephones on the fob; he turned back into the office towards Eischen after apparently being on the way out; Eischen was seen on the floor thereafter and Claimant was seen punching towards the floor rather than attempting to disengage himself as w the threat was made after Eischea end Claimant had been disengaged by others; as he was departing from the office after the altercation Claimant said "it was worth it" as utterance inconsistent with being the victim of an attack or even disengagement but consistent with continued physical sad verbal aggression.

                     Even if it remains unclear from the record as to what Mr. Eischea said causing the Claimant to respond "What did you say" and to tuna back towards Eischen sad the resulting altercations Claimant had other menus available fox redress assumi resorting to physical violence. In view of the seriousness and sustained nature of the incident the penalty of termination is not unreasonable*

                  F>RDICTGS: The Third Division of the Adjustment Board, upon the whole record and all the evidences finds and holds:


                  That the parties waived oral hearing;


          That the Carrier sad the Employee involved is this dispute are respectively Carrier and FSnployes within the meaning of the Railway Isbor Acts as approved June 21, 1934;

            That this Division of the Adjustment Board has jurisdiction aver the dispute involved. herein; and


                  That the Agreement was not violated.

                              Award Number 23389 Page 3

                              Docket Number CL-23342

                              A W A R D


                Claim denied.


                                    NATIONAL. RAILROAD ADJUSTMENT BOARD

                                    By Order of Third Division


          ATTEST:
                Executive Secretary


          Dated at Chicago., 33llnois., this 15th day of September 1981.