(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The suspension of fifteen (15) days used upon Trackman N. E. Roberts was without just and sufficient cause and on the basis of unproven and disproven charges (System File C-4 (13) -NER/12-39 (78-18) J)

 (2) Trackman N. E. Roberts' record shall be cleared of the charges leveled against him and he shall be reimbursed for all wage loss suffered."

 OPINION OF BOARD: Claimant is a trackman assigned to Section Gang 7065,
 headquartered at Croom, Florida. On November 30, 1977, claimant's gang was assigned to work with two other gangs to repair a highway crossing at Floral Cit charge of the job and E. E. Ellis was foreman of Gang 7065.

 In the early morning, the roadmaster observed claimant talking in a loud voice and singing. He asked Foreman Ellis about this. Foreman Ellis explained that it was claimant's normal behavior. The roadmaster called claimant to the side and spoke to him. Claimant walked away and went back to work, before the conversation was concluded. In a loud voice, the roadmaster ordered claimant to return, so that he could finish his instructions about talking, singing, and shouting on the job.

 Carrier alleges that during this second conversation, claimant told the roadmaster that he could not make him stop talking or singing, as long as he did not bother others. It is also alleged by Carrier that claimant continued his disruptive behavior for at least two hours after he was told by the roadmaster to stop. Carrier subsequently charged claimant with disruptive conduct, a violation of General Rule 15 and that portion of Rule 18 relating to insubordination.

 A hearing was held into the matter. Claimant was found guilty as charged and assessed a 15-day, actual 10-work-day, suspension. A transcript of that hearing has been made a part of the record of this case.


A review of that transcript reveals that claimant was afforded all procedural rights required by contract. The Organization filed a claim in the instant case, alleging Carrier was arbitrary and capricious in assessing a 15-day suspension. Carrier denied the claim at every level. It is now before this Hoard for resolution.

 A review of the record persuades this Hoard that claimant did act in an insubordinate manner toward the roadmaster and that he is deserving of some level of punishment for this behavior. Based on the record, however, this Hoard does not think that the employer has carried its burden of proving that claimant, by his action, was in violation of Rule 15.

        Rule 15 states:


        "Employees must keep physically and mentally fit, stay alert, and work in harmony with associates. When on duty, they must avoid distractions and keep their minds on their work."


Carrier has not indicated by any specific examples or persuasive arguments in what way claimant was in violation of this rule. Carrier has more of a responsibility in this instance than just to claim that employes were disrupted. It must present some evidence to support its statement.
It is interesting to note that Foreman Ellis, when asked about claimant's behavior, told the roadmaster that claimant was only acting normally. It would appear to this Board that had claimant's behavior been as disruptive as Carrier claims, some discussion would have been held with him prior to the major incident in this case.

 This Board also wants to point out to claimant that it does not condone his attitude concerning authority on the job, and that this award can in no way be interpreted as doing so. We have arrived at our decision based on Carrier's failure to prove part of its charges involving Rule 15.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


                                                        l

                  Award Number 23037 Page 3

                  Docket Number W-23081


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Divisio:i of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the discipline was excessive.


                      A W A R D


Claim sustained in part and denied in part. The 15-day, actual 10-work-day suspension shall be reduced to a 7-day, actual 5-work-day suspension.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
          Executive Secretary


Dated at Chicago, Illinois, this 28th day of October 1980.