Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 31847
 Docket No. CL-32276
 96-3-95-3-114

 The Third Division consisted of the regular members and in addition Referee Elizabeth C. Wesman when award was rendered.

PARTIES TO DISPUTE:

STATEMENT OF CLAIM:
    "Claim of the System Committee of the Organization (GL-11124) that:


      1. The Company violated the Rules Agreement effective June 1, 1972,

        as amended, when they arbitrarily dismissed from service Arnoldo

        R. Hinojosa, Jr. That the Company denied Mr. Hinojosa, Jr. a

        meaningful hearing, therefore, dismissal from service was

        unreasonable, harsh, unjust and displayed a complete abuse of

        discretion and otherwise denied Mr. Hinojosa, Jr. due process.


    2. Mr. Arnoldo R. Hinojosa, Jr. should be reinstated to service and

        compensated for each workday at the rate of his last position held

        commencing February 2, 1994, and continuing each and every

        workday thereafter until adjusted. He should also be compensated

        all overtime he would have worked had he remained an employee of

        the Company subject to a check of the Company's records. He

        should be allowed an amount of interest allowable by law, on any

        monies that have been or will be deprived him on account of the

        Company's unjust, unreasonable and arbitrary action.


    3. Mr. Arnoldo R, Hinojosa, Jr. should have all agreement rights

        restored, including the premiums for Travelers Group Insurance

        and Policy GA 23000. He should be reimbursed for medical and

        dental expenses occurring to him and his dependents while so

        improperly withheld from the Company's service.


    4. Mr. Arnoldo R. Hinojosa, Jr.'s personal record should be cleared

        from the Notice of Hearing dated January 25, 1994."

Form 1 Award No. 31847
 Page 2 Docket No. CL-32276
                                              96-3-95-3-114


FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:


The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.


This Division of the Adjustment Board has jurisdiction over the dispute involved herein.


      Parties to said dispute were given due notice of hearing thereon.


On the date this incident occurred, Claimant was protecting the 11:00 P.M. Laredo Yard Clerk's position from the Extra Board. In the early morning of October 31, 1993, Train No. 7 reported a rough track condition on the west switch and frog on the main track at Agua Dulce Grain Company to Chief Clerk Cavazos at Corpus Christi, Texas. At approximately 10:30 A.M. a derailment occurred at MP 130, involving two locomotives, 16 loaded and five empty cars. Claimant was notified to appear at an Investigation concerning the derailment on Januarv 25, 1994. Following that Hearing, Claimant was discharged.


The Organization raised a procedural objection concerning the fairness of the investigatory Hearing. Specifically, the Organization maintains that the Hearing Officer had prejudged Claimant and ran the Hearing as a "kangaroo court." It further argues that the Hearing Officer was far too involved in the circumstances from the outset of events prior to the Hearing to conduct a fair trial. A critical review of the entire transcript fails to support the Organization's contention in this matter. While there were strong words exchanged between Claimant's representative and the Hearing Officer, with no little testiness on both sides, the Hearing was ultimately conducted in a fair manner and Claimant had ample opportunity to present his defense.


With respect to the merits of the case, the Board Is faced with diametrically opposite versions of the events transpiring prior to the derailment. Chief Clerk Cavazos testified that he notified Claimant concerning the rough track condition. Claimant initially testified that he received no such call, then admitted that he may have received the call, but because he was "very busy" that night, forgot to act on it.

Form 1 Award No. 31847
 Page 3 Docket No. CL-32276
 96-3-95-3-114

Upon reviewing the transcript, the Board rinds itself in agreement with the Carrier's determination that Cavazos is the more credible witness. In view of Claimant's prior discipline record, and his short tenure with the Carrier (less than one year) the ultimate penalty of dismissal was not excessive under the circumstances.


      Claim denied.


                        ORDER


This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.


                        NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division


                        Dated at Chicago, 111inois, this 26th day of December 1996.