G/a,


                  THIRD DIVISION Docket Number MW-23493


                      Herbert Fishgold, Referee


    (Brotherhood of Maintenance of Way FSnployes PARTIES TO DISPUTE:

                  (Seaboard Coast Line Railroad Company


    STATEMENT Cd' CLAIM: "Claim of the System Committee of the Brotherhood that:


    (1) The discipline imposed upon Trackman Ee A. McKenzie for alleged insubordination was arbitrary, capricious and on the basis of unproven and disproves charges C-4(13)-EAM/12-39 (79-24) J)·


    (2) The claimant's record shall be cleared and he shall be compensated for all wage loss suffered."


    OP33ION OF BOARD: The claimant was working as a trachea assigned to

    Section 6765 headquartered at Winston,, Florida, and was under the supervision of Foreman R. J. Tyson. At approximately 10:00 AM on November 21, 1978, Foreman Tyson instructed Claimant to "get two foot adzes and a pair of goggles off the truck." There followed a heated discussion between the tyro of them ate, an a result, Claimant was charged with a violation of Rule 17, which prohibits profane., indecent or abusive language, and Rate 18, which prohibits various acts of disloyalty, dishonesty, desertion, intemperance., immorality, vicious and uncivil conduct, insubordination, etc*


    The Claimant vas removed from service on November 22, 1978 pending an investigation. As a result of the investigation sad herring, Claimant was notified on December 14, 1978 that Rule 17 was act substantiated, but that testimony indicated he was insubordinate towards hi alloyed to return to work an December 14, 1978, without any compensation for lost time between November 22 affil December 13, 19'T8.


    As noted, the charges stemmed from certain of Claimant's conduct on November 21, 19'f8, following Foreman Tyson's instruction to get two foot adzes from the truck. There was conflicting testimony. as to what transpired. Claimant contending that he told his foreman that there was only one "foot adz" on the truck whereupon Tyson became angry. Tyson then told Claimant to walk down the tracks with him and became hotter and would not let up. Foreman Tyson testified that he asked Claimant to walk down the tracks because Claimant had previously indicated he did not want to discuss things of this nature in front of other employee on the wag. Tyson ranted Claimant to calm down sad was going to tell him to go to another truck to barrow an additional adz, but Claimant continued "to fly off the handle."

                    Award Number 24175 page 2

                    Docket Number Mil-23493


Other individuals in the immediate axes rare unable to verify either version because they did not hear the discussion between Claimant and Tyson walking down the track. Although there is conflict in the testimony as to what actually oc existed between claimant and Tyson, and that Claimant felt that Tyson disliked him. In fact, on Clai
once again, as in Award 22953 (Third Division, Referee Joseph Sickles), this Board, in a case between the same Organisation and Carrier, is faced with a credibility conflict between a Foreman and as employs. As Referee Sickles noted in that case, wherein he upheld a 30-day suspension for a violation of Rule 18:

        "As hoe often been repeated by this Board, it is not incumbent upon us to resolve credibility issues, inasmuch as we are not present at the hearing to observe the witnesses as testimony end evidence was


        We are of the view that there is a sufficiency of evidence concluded that the Claimant van an aggressor in this matter and, accordingly, we are disinclined to set aside the finding of guilt."


Turning to the disciplinary action herein, a 15-rock day suspension, this Board, in Award 18550 (third Division, Referee Robert 0'Brien) noted:

        "The policy of this Board involving disciplinary cases is so well established as to be uacoatroverted. This Board rill not weigh the evidence adduced at the hearing nor resolve conflicts therein. We rill not disturb Carrier's decision where it is supported by substantive evidence and not arbitrary or capric rill we substitute our judgment far that of the Carrier unless the record discloses prejudice or bias." (Citations omitted).


Here, noting that the Claimant has previously been given two prior 64-day suspensions, this B day suspension in a situation such as this and, accordingly, we rill deny the claim.

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


        That the parties waived oral hearing;

                      Award Number 24175 Page 3

                      Docket Number Dfif-23493


That the Carrier and the Employes involved is this dispute are respectively (terrier and Employes within the meaning of the Railway Labor Acts as approved June 21j- 19343

 That this Division of the Adjustment Board has juridictioa over the dispute involved herein; sad

        That the Agreement was not violated.


                        A W A R D


        Claim denied.


                            :PATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Hoard

 By
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago., Illinois,, this 28th day of February 1983.