PARTIES Brotherhood of Maintenance of Way Employe.es
 TO .
 DISPUTE: and
 Seaboard System Railroad (L & N RR)
 STATEMENT 1. The dismissal of J. L. Mitchell for alleged
 OF
 CLAM: insubordination on September 27, 1983 and being
 insubordinate on October 5, 1983 was without just
 cause.
 2. Claimant Mitchell is entitled to reinstate
 ment with seniority and other rights unimpaired
 and compensation for all wage loss suffered.
 FINDINGS: Carrier's decision to dismiss claimant, an assist
 ant foreman with about~four years overall service
 is based on two incidents,, one in September 1983
 involving Assistant Roadmaster Williams and the
 second on October 5, 1983, involving Foreman
 Mattison.
 In the first incident, it was discovered that the
 spike puller assigned to claimant's gang would not roll due to a
 defective wheel. A siding 1/2 mile away could have been used as
 the place to set out the machine. Mr. Will-Tams testified that

,P3(3'19wO sa-


      he instructed claimant to set out the machine at that siding; his testimony was corroborated in essential details by Machine Operator, James Taylor.

      Instead, the spike puller was dragged some six miles to the camp at claimant's instructions, although the nearby siding was passed twice during the gang's work day.

      Claimant and two other members of the gang testified that Mr. Williams had not specified setting the machine at the nearby siding at Nenemoosha, but had merely said "to go to the hole." While in his testimony, Mr.. Taylor stated that Mr. Williams' instructions were to "put it in the hole" when "we get up there to the switch." The switch was at Nenemoosha.

      In any event, Carrier's. findings are supported by substantial credible evidence, even though that evidence may be controverted. Accordingly, under the well established principles and practices governing this appellate board, we will not set aside Carrier's findings as to the first incident. In the light of the situation and distances involved and all the testimony,- Carrier's conclusion that claimant was insubordinate when he had the machine dragged six miles to the camp is not unreasonable or without valid basis in the record.

      Carrier's findings as to the October 5th occurrence is supported by testimony of Foreman Mattison. That testimony is definite, unambiguous and detailed. It is to the following effect:

                    Mr. Mattison asked claimant why the

                spiker was so far behind and was

                . told they were having mechanical

                trouble. When Mr. Mattis,on asked

                him if he had gotten the mechanic,


                                          E·.

                              Award No. 52

- Case No. 108

    claimant replied that that was not

    part of his job. Mr. Mattison then

    stated that it was part of his job

    and instructed one bf the gang to

    . go up and help the rail lifter.

    Claimant countermanded the order and

    when Mr. Mattison instructed him to

        ' work with the rail lifter and get

        it caught up, claimant began to curse

        Mr. Mattison and direct extremely

        foul epithets at him. Mr. Mattison

        repeated his instructions to claim

        ant and the latter "came right at me

        hollering, swinging his arms and when

        he got close to me he jumped right

        into my face so close his forehead

        hit my nose, still hollering and spit

        ting."

        Mr. Mattison then relieved claimant

        from duty pending investigation.

        Claimant at first refused to leave

        the property until a Special Agent

        came to the scene. After about 45

        minutes, he did leave.-

        Claimant's testimony was that Mr. Mattison had

        been "scowling" at him with"a threatening face" and using profanity

        that morning, particularly when he was giving instructions and

        raising questions regarding the rail lifter. He testified that he

        had performed a good deal-of work in a conscientious manner. He

        testified that he used his hands "in an explanatory position" to

        explain that he was tired of "him scowling me about the job."

        Claimant denied physically touching Mr. Mattison or throwing a

        punch at him. He testified that he left the property after being

        relieved as soon as his request for a letter setting forth the -

        charges was complied with by Mr. Mattison.

        It is well settled that it is not this Board's

        province to resolve credibilitv issues. We are an appellate board

        and have no occasion to observe the witnesses' demeanor and to

~3 b3 - 4w'o
              5~,~-


      hear them testify.

      We have reviewed the entire record with care and perceive no basis for setting aside Carrier's findings or reversing its decision to dismiss claimant. They'are supported by substantial though controverted evidence. There is no indication that Mr. Mattison ever gave even the appearance of using force. It is not denied that at an angry moment claimant did approach Mr. Mattison in an aggressive manner. At any rate, we will not substitute our judgment for that of carrier.

      It was proper for Carrier to consider, 3n determining the measure of discipline, that claimant had been dismissed in 1981 for "being profane and uncivil" toward Asst. Roadmaster Carr; the discipline was subsequently reduced to 90 days suspension on a leniency basis.


      AWARD: Claim denied.


RECEIVED

B. M.tyV.E. Adopted at Jacksonville, Florida, ~>y~,,.,~l·-~c~ 1984.

    NQV261934


    O. M. BERGE

      PRESIDENT:

                  Haro d M. Weston, Chairman


Carrier Member Employe mem er

                          . as