(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIK: "Claim of the System Committee of the Brotherhood that:

 (1) The tire (5) day suspension imposed upon Trackman J. L. Brewer. Jr. for alleged violation of 'Rule Q' was without just and sufficient cause and on the basis of unproven charges ((terrier File 013.31-216).

 (2) The sixty (60) day suspension imposed upon Trackman J. L. Brewer. Jr. for alleged 'insubordination' was without just and sufficient cause sad on the basis of unproven and diaproven charges.

 (3) Trackman J. L. Brewer, Jr* shall be compensated for all rage loss suffered from October 24, 19'(9 to January 2, 1980."

 OPINION Cg' HOARD: Claimant appeals from taro disciplinary actions; the first
 resulting is a five-day suspension and the second a sixty-day suspension

 In the first instance.. the claimant was discovered away from his assigned duty poet where he wa joints. He was in the company bus where he claims that he was cleaning up the bun after completing his work assignment.

 In the second instance, the claimant was initially dismissed by the Assistant Roadmaster because of insubordination by the claimant in first refusing to follow instructions, then speaking disrespectfully to and threatening the Assistant Roadmaster. The claimant denies these allegations and alleges that the Assistant Roedmaster used abusive language to him and threatened him.

        In both insteacea,there is conflicting testimony.

                                          r-


The Petitioner has cited numerous Awards requiring the (terrier to develop by appropriate evidence at the hearing the facts necessary to justify the Carrier's disciplinary activities.

 The Board agrees with this contention. The burden of proof in disciplinary cases is on the Carri Award Number 24133
 Docket Number MW-230

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 The Board has examined the record of the hearing in each instance and concludes that the Carrier did preset evidence which, if believed, supports the disciplinary act
The Board is aware that, in each instance, the claimant provided evidence which conflicts with the evidence upon which the (wrier made its decisions.

 It has long been established that where there is conflicting testimony that the Board is not in Carrier's action constituted an abuse of discretion. A review of the transcript does not support a c
The Carrier alleges that the first disciplinary action was not properly before this Board. because it was not properly appealed. In light of our decision to support the Carrier's action in the first instance, it is not necessary to address the matter further,

 For the reasons cited herein, the claims will be denied.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole retard sad all the evidence, finds and holds:


That the parties waived oral hearing;

 That the Carrier and the Employes involved is 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.

 Claim denied.

 ATTEST: Acting Executive Secretary
        National Railroad Adjustment Board


By
 Ro emarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 27th day of January 1983.

 v'
 NATIONAL RAILROAD, A· W &
 By Order of Third DivisiozY'---