PUBLIC LAW BOARD NUMBER 3445
Case Number: 35
 PARTIES TO DISPUTE

                  SOUTHERN RAILWAY COMPANY -


STATEMENT OF CLAIM
Track Laborer. B. L. Crook, P. 0. Box 1302, Skyland, NC 28704, was dismissed from service on September 11, 1984 for allegedly failing to protect his assignment. Claim was handled on the property in accordance with Railway Labor act and agreement provisions. Employes request reinstatement with back pay for all lost time and all other rights unimpaired. FINDINGS
      Claimant, at the time of the dispute in question, was


employed as a laborer at Canton, North Carolina. By letter "
 dated September 7, 1984, Claimant was notified to attend an
 investigation concerning charges that he failed to protect his
 assignment between August 1, 1984 and September 7, 1984, and that
 he misrepresented the extent of an injury allegedly suffered on
 duly 11, 1984. An investigation was held on September 11, 1984. -
 By letter dated September 14, 1984, Claimant was dismissed from
 service.

 The issue to be decided in this dispute is whether Claimant "
 was dismissed for just cause under the Agreement. --_
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      The position of the Organization is that Claimant was °-

dismissed without cause by Carrier, contending that Claimant has
 been, in effect, dismissed merely for sustaining an injury while
 on duty. The Organization cites the fact that Carrier was
 informed o_ Claimant's injury at the time of its occurrence, and -
 that Carrier was aware of Claimant's need to recuperate from -
 August 1, 1984 to the time of the charge letter. The Organize- -

 tion further cites a report from an orthopedic doctor. Dr. -_
 Lemack, indicating that Claimant was physically unable to work
 until further notice. The Organization maintains that credible
 medical evidence was relayed to Carrier indicating that Claimant
 was physically unable to protect his assignment, and that Car-

 rier's dismissal of Claimant on the basis of his failure to -

 protect assignment was therefore improper.

 The position of the Carrier is that Claimant was properly dismissed on the basis of his misrepresentation regarding and injury allegedly suffered on July 11, 1984.

      Carrier contends that Claimant's injury, suffered on July --


11, 1984, was not of the serious nature Claimant represented it ,-
 to be. Carrier cites the testimony of several witnesses who
 indicated seeing Claimant walk and perform in a normal manner
 during the period of time in which he was allegedly injured.
 Carrier cites the testimony of Track Supervisor Ward that he

 witnessed Claimant walking normally on July 16, 1984, and that -
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Claimant only appeared in discomfort when he was approached by Ward. Carrier further cites the testimony of Dr. Stone, a Carrier physician, who observed Claimant walk normally out of his - office on two occasions after initially exhibiting signs of

 injury upon entering the doctor's office. Finally. Carrier -

 cites the report of. Special Agent L. R. Cline that he observed
 Claimant dancing vigorously at a dance hall on August 30, 1984,
 ,at a time when Claimant was allegedly still unable to walk.
 Carrier asserts that the overwhelming weight of evidence suggests
 that Claimant's injury was either wholly fabricated or misrep
 resented to a large extent. Carrier further maintains that
 Claimant therefore had no legitimate excuse for not protecting

 his assignment and was therefore guilty of failure to protect =-

 assignment between August 1, 1984 and September 7, 1984.

 Finally, Carrier maintains that the discipline imposed was --reasonable. Carrier contends that Claimant's actions constituted both willful dishonesty and a failure to protect employment, both dismissible offenses. Carrier further contends that Claimant's poor prior disciplinary record serves as additional justification for the dismissal.

 After review of the record, the Board finds that the claim must be denied.

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      It is not the purpose of this Board to rehear an investiga-


tion that Carrier held but only to determine if the discipline --

 imposed was arbitrary, capricious or an abuse of discretion.

      We find that Carrier has sustained the charges brought

against Claimant through substantial evidence. Claimant removed-; -
 himself from service on the basis of an alleged injury suffered
 while on duty, and remained out of service on the basis that he °
 was physically unable to perform his duties. Carrier has
 produced persuasive evidence from several independent witnesses - -
 that Claimant was walking and functioning normally, even to the
 point of vigorous dancing. The testimony of those witnesses also
 suggest that Claimant purposely feigned discomfort when he knew
 Carrier officials were watching him. The evidence as a whole
 clearly indicates that Claimant was capable, during the period in
 question, of performing work for Carrier. His representations to
 the contrary constitute both dishonesty and a failure to protect
 employment without legitimate excuse. Under the circumstances,
 and in light of Claimant's poor prior record, we find that
 Carrier acted within its discretion in dismissing Claimant.

 Accordingly the claim must be denied. -

                            ~nv.


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