PL -3 19.37.

J1tw~25 7~-~-~ PARTIES TO DISPUTE:

Brotherhood of Maintenance of Way Employees

VS.

Norfolk and Western Railway Company STATEMENT OF CLAIM:

1. Carrier violated the effective Agreement dated April 1, 1951, on June 23, 1976, by unfairly and improperly dismissing Claimant J. Obermiller from service.

2. Claimant James Obermiller shall be reinstated to Carrier service, compensated for all wages lost, and have all seniority and other rights returned unimpaired.

FINDINGS: This Board upon the whole record and all the evidence finds that:

The Carrier and the Employee.involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as amended. OPINION:
The events which culminate in this Boa rd '.s deliberation occurred on June 22 and 23, 1976. On June 22, 1976, the Claimant, an Assistant Section Foreman (whose status is covered by the provisions of the. applicable Agreement), confronted his, supervisor -a Section Foreman -- relative to the foreman's permitting other parties. to perform a certain increment of work. A disagreement developed between the Claimant and his supervisor, the substance and tenor of which is' somewhat in dispute: the Foreman contends he tried to reason with the Claimant in a non-threatening tone did not exchange verbal abuseswith him and that the Claimant chose a setting on June 22 where other employees could be privy to the
dispute; the Claim' contends the discussIor~on that date
(June 22) was in reasonable privacy and that the foreman contri-

buted to the problem by calling the Claimant a liar and otherwise,
inciting his unfavorable response. The record of this case indi
cates that corrobating testimony of either version was tentative,
at best. The Carrier cites a threat to "kill you" uttered by
the Claimant to his foreman which it considers of sufficient
gravity to prompt his removal. While differences in the facts
do exist and it is a well established principle that this Board
cannot resolve such disparity in assertions, it is clear enough
that the Claimant had alternatives available to him if he felt
the foreman was in error in the disputed work assignment: the
most obvious was the grievance procedure. The sequence of events
leaves little doubt that he fomented the dispute in his challenge
to the foreman on June 22 and by his admittedly brash if not
insubordinate action on June 23, 1976. We have no reason to
conclude that his threat.to "kill" was any more than a gross
error in judgment resulting from allowing his temper to get out
of hand. Noting that both the Claimant and the Carrier have
several years invested in their relationship, we shall order the
Claimant returned to duty with his seniority intact, but without
back pay. We suggest that the Claimant take this opportu
nity to demonstrate that his actions of June 22 and 23, 1976,
are not indicative of his attitude and ability. We conclude that
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/~-~lJ - 6 -lP3 7

' '° -' the Agreement wa of violated. '

AWARD:

r Claim is denied on its merit, but the Claimant shall
be returned as set out in the opinion.
J s F. Scearce
Neu a1 Member

l ,,- _ /'~ '/

G. C. Edwards Fred Wurpel, Jr~. ;,

Carrier Member Organization hIember

Dated this ~ day of ~ ~, ~~/~ at

~P~. O.

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