NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-24907
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Track Foreman Michael Sanchez for alleged violation
of "Rule #3007" and "Rule E" was without just and sufficient cause.
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, his record shall be cleared of the charges leveled against him
and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: Prior to the occurrence giving rise to the claim herein,
Claimant was employed as a section foreman, who was found
guilty of the following offense and was dismissed from the Carrier's service on
June 3, 1977:
"Violation of Safety Rule #3007 which states:
'Personal conduct must be free from scuffling,
practical jokes or horseplay while on duty or
on company property.'
Also, violation of Rule E which states in part:
'Gambling, making bets, fighting or participating
in any illegal immoral or unauthorized activity
while on duty or on company property is prohibited.'"
A transcript of the hearing held prior to Claimant's dismissal has been
made a part of the record. The record shows that Claimant engaged in a fight
with another employe on Company property, as a result of which both sustained
injuries.
The record does not show that there were witnesses to the fight, other
than the two participants. Each of the participants testified in the investigation
and gave conflicting statements as to who instigated the fight and who was the
aggressor. The Carrier, as the trier of the facts, chose to believe the testimony
of the other employe rather than that of the Claimant.
Award Number 24640 Page 2
Locket Number MW-24907
It is well settled that this Board will not weigh evidence, attempt to
resolve conflicts therein, or pass upon the credibility of witnesses. Such
functions are reserved to the hearing officer. The Board may not reverse the
Carrier's determination merely because of conflicts in testimony. The evidence
in the present case was sufficient to warrant Carrier's action in imposing the
discipline that it did.
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 Employe 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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Nancy ver'- Executive Secretary
Dated at Chicago, Illinois this 30th day of January, 1984
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