(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Chesapeake and Ohio Railway Company (Southern Region)

(1) The dismissal of Foreman C. R. Carter for 'alleged theft of Company material from the C60 Ra Bonded Fibers during the month of October 1984' was arbitrary, unwarranted and in violation of the Agreement (System File C-D-2664/MG-5018).

 (2) The claimant shall be reinstated with seniority and all other rights unimpaired, his record cleared of the charge leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: The letter of November 13, 1984, notifying Claimant, a Track
 Foreman with 9 years service, to attend an Investigation regarding the alleged theft of Company material stated in part:

At the Hearing the General Chairman objected that there were several witnesses necessary to prove the Organization's case that were not present and he proceeded under protest. There is no evidence that any specific witness was requested or called by the Organization.

 At the Hearing Captain Dunford of Carrier's Police identified a statement signed by Claimant in Dunford admitted he had not asked Claimant if he wished to have a Representative present when he que Claimant requested Representation. At the Hearing the Organization offered a statement from a non-employee who was not present as a witness. It was rejected.

 Contrary to the Organization we do not believe Claimant was denied a fair Hearing. The Charges were sufficiently specific to put Claimant on Notice. There is nothing to inhibited by Carrier.

 The Hearing Officer was J. C. Tomkins. On November 30, 1984, C. L. Bialik, Manager, Engineering notified Claimant:
                    Docket Number MW-26932


          "I find you to be guilty as charged, and, accordingly, the discipline to be assessed is dismissa from Company service."


Relying on those cases which teach that a Hearing Officer is the proper person to make credibili contractual rights were denied. We cannot agree. Claimant's admissions afforded Carrier substantial proven. There were no vital credibility findings to be made.

 Finally, the Organization argues the~discipline was excessive. In addition to our historic reluctance to disturb the extent of discipline when it is not arbitrary, capricious or unfair we note that on November 25, 1985, Carrier notified the Organization that Claimant had threatened his former Supervisor with a rifle and attempted to force the Supervisor's vehicle off a road. Claimant has since been convicted of these offenses. This would not be an appropriate case for interference with Carrier's discipline.

        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. - Executive Secretary


Dated at Chicago, Illinois this 30th day of September 1987.