PUBLIC LAW BOARD N0. 183 8

Findings The Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor fact, as anssded, that this Hoard is duly constituted by Agreement dated March 1, 1976, that it has jurisdiction of tie parties and the subject matter, and that the parties were given due notice of the hearing held .

Claimant Beagle began service with Carrier on June 21, 1978 as a cazpenter helper. .

Under date of September 5, 1980 Claimant received a notice fran Carrier which in pertinent part, read:

"You are hereby noticed to attend an investigation of

nmrsday, September 9, 1980 at 10:00 a.m. to determine your

responbility in connection with your insubordinati.cn in that

you refused a direct order, your use of obscene and abusive

language to your supervisor on August 29, 1980, and your

excessive absenteeism f ran ycur assigned position, the latest

of which was August 21, 1980."

The.scheduled investigation was postponed, and, subsequently, was held on Tuesday, October 28, 1980. As a result thereof Claimant's

The Board has read the transcript of the investigation and finds no evidence of prejudgment, partiality or unfair treatment of Claimant therein.

The transcript of the investigation discloses that on August 29, 1980, E. F. Henderson, Assistant Supervisor, Bridges and Buildings, Norfolk Terminal, spoke to Clement Beagle =xcerning a prior instruction to present a doctor's note for Claimant's absence on August 21st. On August 21, 1980 Claimant had contacted Supervisor Henderson to request permission off to see a physician, said pe·masion was given but with the specific instruction that Claimant preset a doctor's slip when Ike returned to service.

Claiman t returned to service on August 26th and failed to present a doctor's certificate.

Supervisor Henderson contacted Beagle to inquire why no doctor's slip had been presented . Claimant advised Supervisor Henderson that he forgot it, that it did not think it was such a "big deal.". The following day, Supervisor Henderson testified, he again requested rla;_mnt to pent the doctor's certificate. Claimant again contends that he did rot think that the presentation or note was important despite the fact that Supervisor Henderson warned him that if he did not have it by the following Friday he could no longer work.

Ch August 27th Supervisor Flenderson spoke to Beagle on at least three different occasions con cerning the note from the doctor.

On August 28th Supervisor Hendexson left instructions that Beagle was not to be permitted to return to work until he presented the doctor's certificate. Cn August 29th Claimant Beagle appeared at Supervisor Henderson's office and the testimony indicates that Claimant thought that the whole thing liras a "bunch of bullshit": From that point on, according to Henderson, Claimant's attitude and language degenerated to a point which did not require repeating herein.

Claimant denied using obscene and abusive language. Claimant's version of the events contravene that of the Supervisor and the corroborating witnesses called by Carrier.

Claimant contends that the e"uL revent to present a note was an effort by Carrier to harass him, that it was evidence of the fact that Carrier was getting ready to fire him anyway.

Claimant sought to explain his excessive absenteeism by stat ing that he was suffering from arthritis, which he was seeking competent medical help t overcome.

The issue concerning Claimant's excessive absenteeism, his alleged insubordination, and his use of obscene and abusive language hinged upon one of credibility. As was held in Award No. 1 of PIZ 1753 (A. Van Watt)

"...Carrier, as the tsier.of facts, chose to give greater weight to the tast=cny of its witnesses rather than to that of Claimant and his witnesses. Nat3vng in this record shows that Carrier arbitrarily or capriciously exercised such right."

The Board has examuzed the record and wee find that Claimant was afforded a fair and = partial hearing free of any indication of

prejudgment or prejudice, as stated. There was ample,credible

We can find no cause within the record to permit the Hoard to

J