2. Claimant McGuire shall be reinstated to his former position with pay for all time lost, with vacation, seniority, and all other rights restored end his personal record cleared of all charges.
The Claimant was dismissed from service for allegedly leaving his assigned place of work without proper authority and exhibiting indifference toward his assigned task. The Employee requested a hearing and subsequent to the hearing the termination from employment was affirmed.
The Yard Foreman testified at the hearing that he had instructed the Claimant to perform specific duties on the day in question. According to the Foreman, the Employee did not perform the duties as assigned and, in fact, at one point, he started "playing" in water with a stick which he had picked up.
Certain procedural questions have been raised concerning timeliness, however, the Organization has not presented sufficient evidence to us to require that we consider the case on that procedural ground. Concerning the merits, once again, as in prior cases descided by this Board, we are faced with a credibility conflict in the testimony. As has been stated before by this, and many other Board, we are not constituted to substitute our judgment for that of the Carrier concerning credibility determinations as long as there is evidence of record which would support the version accepted by the Hearing Officer. Clearly, there is such evidence of record in this case and, thus, we are powerless to dismiss the credibility determinations made prior to the submission of the case to this Board.
While, at first view, the punishment of dismissal may appear harsh for the offense in question, our attention has been invited to the rather unenviable discipline record. We find that since 1975 he has had a number of disciplinary actions taken against him including two dismissals and restorations to service on a leniency basis. Based upon that consideration, we do not find that it was arbitrary or capricious for the Carrier to impose a disciplinary action of termination and, accordingly, we will deny the claim.