(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATMMNT OF CLAIK: °CLaim of the System Committee of the Brotherhood that:

 (1) The dismissal of Trackman Allen T. Ray far alleged insubordination and for allegedly threatening was without just and sufficient cause and on the basis of unproven charges (System File C-D-1018/MQ-2944).

 (2) Trackman Allen T. Ray shall be reinstated with seniority and all other rights unimpaired and he shall be compensated for all wage loss suffered."

 OPMOH OF BOARD: Claimant, with about three years of service vas
 employed by the Carrier as a laborer, and vas assigqed to Track Force 11539 headquartered at Winn* Branch, Ventucip, under the immediate supervision of Faremsn R. 0. Peppi. He customarily operated an air compressor, but on the date of the occurrence ant of which the dispute herein arose the sir compressor vas idle and he was assigned to perfom other track work with Track Force 1153 at Sisers, Kentucky.

 On February 20, 19809 claimant vas notified to attend an investigation, to be held in the Con West Virginia, at 10:00 a.a., February 29, 19809 on the charge:


investigation vas postponed to 10:00 A.M., March 12, 1980. The investigation
 vas held as rescheduled. Claimant did not appear for the investigation,
 although the record shows that he had contacted Carrier's -Track an
 March 11, 1980, in connection with the investigation scheduled far March 12.;'.1
 Following the investigation of March 12, 1980, claimant vas notified on
 March 21, 1980, of his dismissal from service.

 In the appeal handling on the property, the Organization contended that the reason claimant did not show up for the March 12, 1980 investigation was because of his becoming lost in the Huntington area. On Septmber h, 1980, agreement vas reached between the General Chairman and carrier's highest officer of appeals:


                "When this matter was discussed in conferencep it vas agreed that in disposition of this claim,, another hearing on these same charges would promptly be net up and whether or not any discipline should be assessed Mr. Bay rill be deteredaed on the facts to be developed at such hearing. It vas also agreed that holding such a hearing will result in full and final settlement of the instant dispute. Fianlly, it vas agreed that the organization will waive the time limits with respect to such hearing."


        Pursuant to the Agreement of September 4, 1980, claimant was notified on September 23., 1980:


"Attend investigation in the Oonferenea Room Mo Pas
 senger Station, Huntington., West Virgiatsp at 1:30 p.m.,
 Thasdeky, October 9, 1980.
 "You are charged with your responsibility for being in
 subordinate when you refused to perform work as instructed
 by your foreman and also conduct unbecoming an employee .
 · when yon threatened the foreman with bodily harm at about
 ' 8:25 ass., Tuesday.. February 12, 1980, at Siaers, Kentucky.

                "Arrange !or representatives and/or witnesses if desired."


        The investigation vas conducted on October 9, 19800 as scheduled. Claimant was in attendance and was represented* A copy of the transcript of the investigation has been made a part of the record. A review stems that the investigation was conducted in a fair and impartial mLmer. Following the Investigation of October 9, 1980, olaimsat was dismissed fraa service on October 2q, 1980.


        In the investigation of October 9, 1980.9 there vas direct testimony by the foreman that on the morning of February 12p 1980,, claimant took exception to the work assigned to him and insisted on operating a crane, although he vas not an experienced crane operator. The testimony of the foreman vas corroborated by the testimony of the laborer who vas assigned to operate the crane, who testified that he heard the foreman instruct claimant to get hand tools iron the bne, but claimant insisted he vas going to operate the crams; that claimant continued to argue about the matter for about six minutes; appeared to be angry, and that the foreman instructed the claimant about three times to get hand tools fras the bas.


        It is well settled that employes must comply with instructions of their saperiorev unless a proven safety hazard esistnp and then complain through the grievance procedure if they consider their agreement rights have been violated. There vas substantial evidence in support of the charge of insubordination against the claimant.

                Award Number 24355 page 3

                Docket Number MW-24450


As to the charge against claimant of "conduct unbecoming an employee when you threatened the foreman with bodily harm at about
 8:25 aim " the foreman testified that claimant approached him with

 a pick in his head in an aggressive., was in danger of being threatening manner; that he felt
                    ; that t had best involved is fights

on the Job before and that he was hot tad. Re stated fiat he felt
 threatened by claimant. The claimant denied threatening. the foreman.
 Thus, we have a conflict between the two individuals involved in the
 threatening episode. There were no other witnesses. This Board has
 frequently held that it will not attempt to weigh evidence, resolve
 conflicts therein, or pass upon the credibility of witnesses. Such
 functions are reserved to the hearing officer. We are not in a posi
 tion to say that the Carrier was in error in accepting the statement of
 the foreman.

 The Carrier calls attention, as it did on the property, that in October, 1979, claimant was disciplined for engaglag in an altercation with another employe, which fact was taken into censidsratioa in arriving at the discipline to be imposed in the present case.

 Based on the entire record, there is no proper basis for the Board to interfere with the discipline imposed by the Carrier.

        FINDDM: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: That the parties waived mat 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, 19343

 That this Division of the Adjustment Board has Jurisdiction over the dispute Involved herein; and

        That the Agent was not violated.


                    A o- A R D


        Claim denied.


                            NATIONAL RAILROAD ADJM26M BOARD

                            By Order of Third Division


        ATTEST: Acting 8xecntiwe Secretary National Railroad Adjustment Board


        Rescue.rie Brash - stra ve asistaat


Dated at Chicano, I111nois, this 13th day of May 1983.