(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


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

 (1) The suspension of sixteen (16) days imposed upon Painter A. McCullough for alleged violation of Rules 'I' and 'J' was without just and sufficient cause and on the basis of unproven charges (System File NEC-BMWESD-729D).

 (2) The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: The Claimant was charged with violation of Carrier's Rules
 I and J in connection with an incident which allegedly occurred on October 24, 1983. The Claimant's General Foreman signed a statement on that day stating was asked to help carry some pipe. According to this statement, the Claimant made both verbal and physical threatening gestures which were directed toward the Foreman while refusing the order. After a Hearing was held on November 9, 1983 the Claimant was advised that he had been found guilty as charged. He was assessed a sixteen (16) day actual suspension.

 During the Hearing the General Foreman repeated testimony consistent with his October 24, 1983 statement. He testified that he instructed the Claimant to help his co-workers carry some pipe but that the Claimant refused on the grounds that the pipe was "... too heavy for him ... and not in his line of work (and that it was) plumbers' work". After continuing to refuse to do the work even after the Foreman told him that "... he would give him plumbers' rate" for the day the Foreman then told the Claimant that "... in that case (he would) have to stop (the Claimant's) time ... (and) send (him)

 home." It was at this point, according to the Foreman, that the Claimant
 threatened him with profane and vulgar language and jabbed his finger into his
 chest. This version of the facts is contradicted by the Claimant who testi
 fied that when the Foreman "... told (him) to pitch in and help" he did so.
 The Claimant also testified that he did not refuse a direct order from the
 Foreman, did not make physical contact with him, and did not use abusive
 language toward him. This is somewhat corroborated in the record by two
 witnesses who testified for the Claimant. Both stated that they did not hear
 the Claimant refuse an order nor use abusive language toward the Foreman.
                        Docket Number MW-26231


        A review of the total record fails to show any reason why the

Foreman, out of self-interest, would have fabricated his testimony. On the
 other hand, there is cause for reasonably concluding that the testimony by the
 Claimant and by his two fellow workers was self-serving. Further, by long
 established precedent, this Board cannot set itself up as a trier of fact when
 performing its appellate function so long as the testimony by a Carrier's
 witness is not so clearly devoid of probity that its acceptance would be
 ". . per se arbitrary and unreasonable" (see Third Division Award 21612; also
 earlier Awards 10791, 16281, 21238). On the basis of the evidence of record,
 therefore, disturbance of the Carrier's actions in this matter is not war
 ranted and the Claim cannot be sustained.

        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 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 J r - Executive Secretary


Dated at Chicago, Illinois, this 24th day of November 1986.