PARTIES5 Brotherhood of Maintenance of Way Emplcyes TO ! DISPUTE: Chicago and North Western Transportation Company

        (1) The dismissal of Mechanic, D. A. Miller for allegedly entering into an altercation with the Division Encineer and the alleged insubordination in connection therewith was without 'ust and sufficient cause and in violation of the Agreement. (Organization File 2D-4271; Carrier File 81-84-b9-D).


        (2)- Mechanic D. A. Miller shall be allowed the remedy prescribed in Rule 19(d)."


FINDINGS:

 This Board, upon the whole record and all the evidence, finds and holds that the employes and the' carrier involved, are resrectively employes and Carrier within the meaning of the Railway Labor Act as amended, and that the Board has jurisdiction ove.rthe dispute herein.

 Prior to the occurrence giving rise to the claim herein, claimant was emcloyed by the Carrier as a Work Equipment Repair . Mechanic, in the Engineerina.Department of Carrier's Central Division.

 During the morning of November 10, 1982, claimant, who had Dreviously been removed from service pending investigation invclving another matter, returned to the Carrier's property to reclaim tools from a Company truck, which he alleged belonged to him. He was informed. by the Division Engineer that it would be necessary for him 'to produce receipts Droving-ownership of the tools,'or be accompanied to the vehicle where the tools·were stored by a supervisor who could positively identify any material that was the property of the Carrier. A rather heated discussion ensued, with claimant- stating that he would proceed to pick up his tools,.and there was nothing that the Division Engineer-could do to stop him. The claimant allegedly shoved the Livision Engineertoward the wall and walked out.

 On November 10, 1983, claimant was instructed to attend investigation on November-1$, 1983:, on the charge:
                                    - s8.9- 9~-~'

                                    Award No, 38

                      ` Docket No. 37


                                                Page 2


- "Your responsibility in connection with your failure to
          commly with 'Rule 7 and 11 of the General,.,#sgulations and

- Safety Rules; specifically your enter-in an altercation
          with Mr. M-. G. Arter, Division Engineer; at approximately

          11:30 A.M. on November 10th, 1983 at Des Moines, Iowa a nd

          your insubordination in connection therewith."


          A copy of the transcript of thelinvestigation has been

made a part-of the record. At the beginning of the investigation
 some question was raised about it being conducted while claimant
 was on scheduled vacation, but claimant did state that he was
 ready to Droceed with the hearing. We consider%that this
 constituted waiver of any objection. -

 Rules 7 and 11 of Carrier's General Regulations and
 Safety Rules provide: - . -

          Rule 7: "Employees are prohibited from being careless of the safety of themselves or others, disloyal, insubordinate, dishonest, immoral, quarrelsome or otherwise vicious or conducting themselves in such a mannerthat the railroad will be subjected to criticism and loss of good will, or not meeting their personal obligations."


          - Rule f1: "Playing practical jokes, scuffling, wrestling, or fighting while on duty or on Company property, as well as throwing of tools, materials, or other objects is prohibited."


          In the investigation substantial evidence was presented

in sunnort of the charge against claimant by the Division Engineerr
 and a B&aclerk, and that claimant did actually shove the Division
 Engineer. There were conflicts between claimant's testimony
 and the testimony of others; however, it is well settled that
 a Board of this nature does not weigh evidence, attempt to resolve
 conflicts therein, or pass upon the credibility of witnesses.
 Such functions are reserved to the Carrier: The Board is not
 justified in reversing the Carrier's actions simply because of
 conflicts in testimony. We also note that claimant's prior
 disciplinary record was far from satisfactory. His actions in
 the present case- coupled with his prior record, fully warranted
 the discipline imposed. -

                      A W A R D


          Claim denied. -


                - Chairman, Neutral Member


Carrier Member Labor'Member

 Dated:-_