PARTIES TO DISPUTE:

STATEMENT OF CLAIM:
°Petitioner seeks an award setting aside his suspension and termination, and reinstating the following questions, which if resolved in his favor would justify the award sought:
(1) Whether there is just and sufficient cause to sustain Thomas J. Malm e's suspension of January 19, 1983 (Claim 6405, declined on May 13, 1983); and
(2) Whether there is just and sufficient cause to sustain Thomas J. Malone's discharge of February 1, 1983 (Claim 6406, declined May 2, 1983) and
(3) Whether race discrimination was a factor in Thomas J. Malone's suspension of January 19, 1983 and discharge of February 1, 1983; and
(4) Whether Thomas J. Malone was granted a fair and impartial investigation in his suspension case upon the grounds that his union representative was not allowed
(5) Whether during the suspension grievance, Thomas J. Malone was denied his contractual right to have a union representative present during a discussion with his supervisor, which was a direct result of the insubordination charges; and
(6) Whether Thomas J. Malone was denied contractual rights, a fair investigation and due process of law by being denied by the company the presence of a union representative in a conference from which discipline was likely to result; and
(7) Whether the suspension was too severe a punishment under all of the circumstances; and
(8) Whether the suspension imposed was contrary to the authority of Award 22152; and
(9) Whether the termination of Thomas J. Malone was too severe a penalty; and
(10) Whether the termination of Thomas J. Malone of February 1, 1983 is supported and justified by the adequate quantum of proof required in these kinds of cases."
                    Locket Number MS-25736


OPINION OF BOARD: The record indicates that Claimant (Petitioner herein)
 was formerly employed by the Carrier as an IBM Clerk. The
 Carrier states that on January 12, 1983, Claimant was discussing with the
 Manager Terminal Procedures, M. E. Hedrick, errors allegedly made by Claimant
 on January 11, 1983, while working Position No. 339; that during the
 discussion Claimant became agitated, decided he wanted to call his union
 Representative, jumped out of the chair and left the office, ignoring the
 Officer's repeated requests to sit down and finish the discussion, returned
 to his desk and apparently began rummaging through a telephone book. The
 Manager Terminal Procedures again asked the Claimant to return to his office,
 and after giving him ample time for a response, which he did not make,
 Claimant was relieved of his duties. On January 13, 1983, Claimant was
 instructed to attend formal investigation on January 19, 1983, on the charge:
        "Please arrange to attend a formal investigation to be held in Room 711, Central Station, 545 South Main Street, Memphis, Tennessee, at 10:00 AM Wednesday, January 19, 1983, for the purpose of determining the facts and your responsibility, if any, of whether you refused to comply with instructions given to you by Manager Terminal Procedures M. E. Hedrick, at approximately 5:00 PM, Wednesday, January 12, 1983, when he instructed you to return to his office to finish reviewing errors made on Position No. 339, Tuesday, January 11, 1983."


        "Your personal work record will be revieced at this investigation."


The investigation was conducted by Carrier's Terminal Superintendent as scheduled. Claimant was present throughout the investigation and was represented by the Local Chairman of the Brotherhood of Railway, Airline and Steamship Clerks (BRAC). A copy of the transcript of the investigation has been made a part of the record. Following the investigation, Claimant, on January 24, 1983, was assessed discipline o f thirty days suspension.
Upon review, we find that the investigation of January 19, 1983, was conducted in a fair and impartial manner. There was objection by Claimant's Union Representative that Claimant was entitled to have a Union Representative present in his discussion with the Manager Terminal Procedures. We have been referred to Union representation in all discussions with Supervisors about work performance, and we cannot agree that such was the intent of the applicable Collective Bargaining Agreement. See Third Division Awards Nos. 22152 and 22890. Further, the record shows that the discussion with the Manager Terminal Procedures was at the instigation of the Claimant cfi o, after being given the list of erzors, appeared at the office of the Manager Terminal Procedures and asked to discuss the errors. The other objections raised by Claimant's representative sere without merit.
                    Award Number 25590 Page 3

                    Lbcket Number MS-25736


The investigation contains substantial evidence by the Manager Terminal Procedures, corroborated by testimony of the Relief Chief Clerk, that Claimant did not return to the office of Manager Terminal Procedures, as instructed, which instructions were given in a courteous and businesslike manner. There were conflicts between the testimony of Claimant and others in the investigation; however, it is well settled that this Board does not weigh evidence, attempt to resolve conficts therein, or pass upon the credibility of witnesses. Such functions are reserved to the Carrier. Further, conflicts in testimony do not warrant reversing a Carrier's action.
Carrier's Division Manager's Bulletin No. 30, issued on January 1, 1983, which was read into the investigation, provides in part:
            "1. Employes are expected to work safely, obey all rules, and be faithful, alert and courteous in the discharge of duty.


            "2. Civil, gentlemenly deportment is required of all employees in their dealings with the public, their subordinates and each other. Boisterous, profane or vulgar language is forbidden. Courtesy and attention to patrons i Employees must not enter into altercation with any person, no matter what provocation may be given, but will make note of of the facts and report to their immediate supervisors.


            "3. Dishonesty, desertion from duty, insubordination, willful neglect, gross carelessness, making false reports or statements, concealing facts concerning matters are prohibited.


                · f ·n


Claimant was guilty of insubordination by his refusal to comply with the instructions of the Manager Terminal Procedures on January 12, 1983. ESnployes must comply with instructions of superiors, unless a proven safety hazard is involved, and handle through the grievance procedure if they consider that their rights have been violated. The rule is stated concisely "Comply and then complain."
There is no proper basis for disturbing the thirty-day suspension issued to Claimant.
                    Award Number 25590 Page 4

                    Locket Number MS-25736


        On January 21, 1983, another notice was sent to Claimant:


        "Please arrange to attend a formal investigation to be held in Room 711, Central Station, 545 South Main Street, Memphis, Tennessee, at 10:00 AM, Wednesday, January 26, 1983, for the purpose of determining the facts and your responsibility, if any, and whether or not on Wednesday, January 19, 1983, you removed Coapany property in the farm of your personal file from Company premises and whether or not, when file was returned to Company premises by you, on Thursday, January 20, 1983, information contained in that file was missing from that file.


                      * * *w


        "Your personal work record will be reviewed at this investigation."


Investigation of the January 21, 1983 charge was conducted, as scheduled, on January 26, 1983, and a copy of the transcript has been made a part of the record. Following the investigation, Claimant was dismissed from Carrier's service by letter dated February 1, 1983.
In the investigation of January 26, 1983, there was substantial evidence that near the close of the investigation conducted on January 19, 1983, Claimant's personal record file was reviewed by Claimant's representative and Claimant. The re
        "...for the records, I believe that the file was given to me as his representative and that I; thereafter, handed the file to Mr. Malone, it was reviewed by us."


A stenographer testified that he did bring Claimant's personal file to the investigation on January 19, 1983; that he was the last person to leave the room at the close of the investigation on January 19; that he made a search for Claimant's personal file but was unable to find it; that he made further inquiries concerning the whereabouts of the file, including the Conducting Officer of the January 19, 1983, investigation, but without success. l- also testified that the contents of an employe's personal work record were matters between the Carrier and the Employe, which information was confidential. lie stated that the file was returned to him by Clerk A. M. Young on January 21, 1983, but numerous items were missing from the file that he received on January 21, 1983.
Clerk A. M. Young testified that she was aware of the search being made for the file, and that Claimant gave the file to her when he was in the office on another matter on January 20, 1983.
                    Award Number 25590 Page 5

                    Locket Number MS-25736


In the January 26 investigation claimant denied having reviewed his personal work file at the January 19, 1983, investigation; denied having the file in his possession after the conclusion of the previous investigation; denied having removed any documents from the file, and denied having returned the file to Clerk Young on January 20, 1983.
We point out that railroad disciplinary proceedings are not court proceedings; that strict rules of evidence do not apply, nor is the burden of proof the same. There is no requirement that the Carrier prove the charge beyond "a shadow of doubt." Many Awards of all Divisions of the National Railroad Adjustment Board have upheld the dismissal of employes when there was produced substantial evidence in support of the Carrier's action. In Second Division Award No. 6419 it was held:
        "The substantial evidence rule referred to was set forth by the Supreme Court of the United States as follows:


            'Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' (Consol. Ed. Co. vs. Labor Board 305 U. S. 197, 229).^


        See also recent Third Division Awards Nos. 25414 and 24989.


From our review of the transcript of the investigation of January 26, 1983, we conclude that there was substantial evidence to support the action of the Carrier in dismissing Claimant from the service. We recognize there were conflicts between the testimony of Claimant and others; however, we have previously commented rn that subject.
        The claim arising from the dismissal of Claimant will also be denied.


Any question concerning alleged racial discrimination does not address itself to this Board.
We point out that this dispute was scheduled for hearing before the Board, with the Referee present, the hearing to begin at 1:00 P. M., June 21, 1984. The Claimant was represented at the hearing by Attorney A. B. Chambers. The Carrier was also represented.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
 to this dispute due notice of hearing thereon, and upon the whole
 record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and anployes within the meaning of the Railway Labor Act, as approved June 21, 1934;
                    Award Number 25590 Page 6

                    Docket Number MS-25736


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


The issues raised are disposed of in accordance with the Opinion and the claim is denied.
                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        Nancy J er - Executive Secretary


Dated at Chicago, Illinois, this 22nd day of August 1985.
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