(Brotherhood of Maintenance of Way Employee PARTIES 7O DISPVM:

START OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Trackman Benjamin Rogers for alleged 'conduct unbecoming an employs and for physically assaulting Section Foreman A. W, Basco and threatening his life with a knife' on September 25, 1980 was excessive and disproportionate to the charge levelled against him (Carrier's File S 310-392)·

 (2) fibs claimant shall be reinstated with seniority and all other rights unimpaired mad he shall be compensated for all wage loss suffered,"

 OPINION OF HOARD: Claimant, who entered Carrier's service as a trackman an
 October 9, 1969, wan assigned an a trackman to Cang No. 5509s ""A the scion of Section Foreman A. W. Basco at Roes, Leuisians. 0n September 26, 1980, he was notified to report for an investigation on October 2, 1980, an the charge:











The investigation was postponed on several occasions and held on December 16, 1980. A copy of the transcript of the investigation has been made a part of the record. At the begianiag of the Investigation, claimant's representative objected that the ch charge advised the claimant of the conduct complained of, the time, date and


place of the occurrence, and vas sufficiently precise to enable the claimant and his representative to prepare a defense. The charge met the requirement of the Agreement.

 In the investigation it vas developed that about 12:05 p.a., September 25, 1980, the gang to which claimant vas assigned was allowed to take a twenty-minute lunch break. At about 12:25 P.m* the foreman instructed the men that it vas time to return to work iii=telJ, but claimant did not do so. About five minutes later the forma asked claimant whether he understood the instructions to return to work. The claimant respond and vulgar language directed to the foreman and, in effect, told the foreman to give them mane time and they would return to work.

 ' According to the foramn, when he again approached the claimant, about five minutes later, about returning to work, he was met with foul. and abusive language by the claimant, who grabbed him by the throat and threatened to cut his head off. The foreman's testimony as to the foul and abusive language directed to him by the claimants and claimant's gabbing him by the throat and threatening to cut his heed off, vas corroborated by another trackman in the gang.

 There was substantial evidence produced at the investigation in support oaf the charges against the claimant. He was guilty of conduct that simply teat be condoned. If he thought that the foreman's instructions were interfering with his lunch period, it was his obligation to comply and then handle through the grievance procedure if be considered his Agreement rights violated. He c did.

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


        That the parties waived oral hearing;


That the Carrier and the Dmployes involved in this dispute are respectively Carrier and Employes within the menaing of the Railvay TAbor Act, as approved June 21, 1934;

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

        That the Agreement was not violated.

                Avard Namber 243&9 Page 3

                Docket Number W-24615

                A 6i A R D


        Claim denied.


                          NATIONAL RAILROAD ADJDSW'1T BOARD

                          By Order of Third Division


ATTEST: Acting EScecative Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Breach - Administra Assistant

 Dated at Chicago. 3Llinoisj, this 26th day of May 1983.