PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Track Laborer W. E. Stockert for allegedly making 'a loud popping noise in Foreman Flores' ear' was arbitrary, capricious, unwarranted and on the basis of unproven charges (System File PPU-1891/M-TC 181-81).
(2) The claimant shall be reinstated with seniority and all other rights unimpaired, his record cleared and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: Prior to his dismissal, the Claimant, W. J. Stockerr,
 was employed as a Trackman. On May 13, 1981 he was
 notified as follows by E. J. Dean, Chief engineer:






The hearing investigation was rescheduled and held on May 21. Claimant was dismissed from service effective June 2, 1981. The contention that Claimant did not receive a fair and impartial hearing was not raised by the Brotherhood during handling of the claim on the property; only after the claim was submitted to this Division. On this point it .must be observed that the Naticnal Railroad Adjustment Board is an appellate body and cannot consider or adjudicate questions not raised between the parties while the dispute was processed in the usual manner on the Carrier. Thus in another Third Division Award, 18006, Referee Dugan determined as follows:
                      Docket Number MW-24767


        "In the Organization's reply to Carrier's Ex Parte Submission, it raises for the first time the charge that Carrier's hearing officer, Superintendent, M. W. Hallenbeck gave evidence of prejudgement against Claimant at the hearing. This Board has consistently held in numerous awards that charges or contentions not raised on the property can not be considered by this Board in the determination of a dispute. Therefore, we cannot consider such contention of alleged bias of the hearing officer in deciding this dispute."


The evidence is unrefuted that Claimant did indeed cause a loud popping noise near the foreman's ear from a distance of three to five inches causing pain in the ear for some fifteen minutes. The deed was perpetrated as a crank and must be considered 'as a violation of the following safety rules as charged:
        Safety Rule 4:


        "They must endeavor to prevent accidents and injuries."


        Safety Rule 12:


        "Scuffling, wrestling, fighting or playing jokes on fellow employes by air pressure, by electric shock or by other means, either on or off duty, while on company property is positively prohibited."


In dismissing the Claimant from service Carrier took into account his previous record where he had been disciplined six times previously. During 1980 he was dismissed for fighting with another employe and was restored on a leniency basis. In view of the unrefuted evidence in this case and his prior record it is determined Carrier's disciplinary action cannot be Considered capricious, arbitrary or unwarranted.
        FINDINGS: 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 Employes involved in 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 invovled herein; and
        That the Agramenz was nor violated.

            Award Number 24592 Page 3

                      Locket Number Mw-24767

                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST. -
        Nancy J. t- Executive Secretary


Dated at Chicago, Illinois, this 15th day of December 1983.