PARTIES: Brotherhood of Maintenance of Way Employes TO DISPUTES Chiaago and North Western Transportation Company

                  STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:


        (11 The dismissal of Trackman E. E. Shaw was without just and sufficient cause, on tha·basis of an unproven charge and wholly disproportionate to such a charge. (Organization File 9D-4145: Carrier File 81-84-55-D).


        (2) Trackman E. E. Shaw shall be allowed the remedy prescribed in Rule 19.(d)."


FINDING'S:
This Board, upon the whole record and all the evidence, finds and holds that the employes and the carrier involved, are respectively employes and Carrier within the meaning of the, Railway Labor Act as amended, and that the Board has Jurisdiction over the dispute herein.

 Prior to the occurrence giving rise to the dispute here in, claimant, with about two years of service, was employed by the Carrier as a trackman and was working as such in a steel gang-in suburban territory. On October-10, 1983, he was notified to appear for a formal investigation on the charge:

      "To determine your responsibility in connection with the near miss with Train No. 650 on Friday, October 7, 1983."


The investiaation wan postponed and conducted on November 3, 1983. A transcript of the investigation has been made a part of the record. Following the investigation,~claimant was dismissed from service by notice dated November 4, 1983. On September 25, 1984, claimant was reinstated without prejudice to his right to progress claim for pay for time lost.

 Rule "M" of Carrierts General Regulation and Safety Rules, provides in part:

      "Employes must-exercise care to prevent injury to themselves or others.


      "Employes must expect the movement of trains, engines, or other equipment at any time, on any track, in either direction.

                                              s6,- (7-1V Award No- 34 Docket No. 40 Page 2.


      *Employes must not stand on the track in front of an approaching engine, car; or other movinf equipment for the purpose of boarding the same.


There was substantial evidence in the investigation that at about 4:30 P.M., October-7. 1983, claimant was walking along track No. 3 and stepped between the rails of track No. 3 on which suburban train No. 650 was approaching at about fifty miles per hour. The engineer on train No. 650 felt that it was necessary to place his train in emergency to avoid hitting the claimant. Claimant managed to step into the clear, but only seconds before the train passed him. The train was not able to stop until afterit had passed the point where claimant had been standing. There was evidence in the investigation that the train went by the spot where claimant was standing less than ten seconds after he had gotten in the clear.

 There were some conflicts between claimant's statement and-the-statements of others in the investigation. However, it is well settled that a Board of this nature does not weigh the evidence, attempt to resolve conflicts therein, or pass upon the credibility of witnesses. Also, conflicts in testimony does not warrant reversing the Carrier's determination.

 It is clear from the record that claimant failed to exercise due caution to make sure there was no oncoming traffic before steeping on to the track. The engineer and fireman on train No. 650 indicated it was their opinion that it was necessary to place the train in emergency to stop prior to hitting the individual standing between the tracks.

 Claimant's actions created a very dangerous situation. The time he was out of service did not constitute excessive discipline. The claim will be denied.

                    A W A H D


        Claim denied.


                    Chairman, Neutral Member


wrier Member Labor Member

 Dated