STATEMENT OF CLAIM: "Claim of the General Committee of the Brotherhood of

                    Railroad Signalmen on the Alton and Southern Railway Company:


      On behalf of Signalman M. R. Peyla for reinstatement to service and payment for all time lost since October 1, 1979."


      OPINION OF BOARD: The Claimant, a signalman, had been in Carrier's service

      about eleven years, and at the tame of the occurrence giving rise to the claim herein, was workin a signal construction gang. The gang was engaged is the installation of a car retarder.


      The record shows that the Carrier had scheduled overtime work for the gang on Saturday, September 29, 1979. The Supervisor instructed the foreman about

i 1:00 P.M., Friday, September 28, that the gang would be required to work at
 I, 7:00 A.M. on Saturday, September 29. About 3:x+5 P.M. the Foreman advised the
      Supervisor that only one man had agreed to work. The Supervisor they contacted

      the men individually and all agreed to work except the Claimant and one other

      signalman. The Supervisor told the other signaimaa that if he had good reasons

      why he could not work, to report to the office sad explain them. He told the

      Foreman~to inform the Claimant to coma to the office and tell him (the

      Supervisor) if he had good reasons that he could not report. The Claimant

      and the other signalman reported to the Supervisor's office. The other signalman

      agreed to work. The Claimant informed the Supervisor that he would not report

      for duty on Saturday, and did not report, When he reported on the following

      Monday, he was relieved from duty pending formal investigation. On October 1,

      1979. Claimant was notified to report "... October 3, 1979, for formal investigation

      to develop the facts and place your responsibility, if any, is connection with

      your failure to comply with instructions issued to you by Supervisor Signal &

      Communication R. L. Tweedy on Friday, September 28, 1979,"


        The Carrier states that the investigation was scheduled for October 3, 1979, in compliance with that part of Rule 701 of the applicable Agreement reading:


              "... In cases.imrolving suspension, the investigation will be held within three (3) working days of the date charges are made,"


              The investigation was conducted on October 3, 1979, as scheduled.

    ! Claimant was present throughout the investigation and was represented by the

        General Chairman and the Local Chairman of the Organization. Some complaint -

        was made by the representatives of the Organization as to the manner in which the

                          Award Number 239 Page 2

                          Docket Number SG-23972


      investigation was conducted and during the course of appeal alleged that the transcript was not accurate.


      We have carefully examined the transcript of the investigation and find no serious irregularities is the manger in which it was conducted. The

j conducting officer was attempting to confine the investigation and the questioning
 'i to the charge involved. No proof was offered of any inaccuracies is the
 ' transcript.

      As to the facts in the case, we think that the statement of the Claimant in the investigation is of primary importance. He testified in part:


              "... I asked him (the Supervisor) if he was telling me that I had to be here tomorrow. He said 'yes, you have to be here.' I said that it was my day off and I didn't think that I had to work on my day off gad that I wasn't. He said 'yes, you will.' I said 'bull shit'. Ha said 'You will be aubSect to disciplinary action.' I said, 'well, we will have to sae.' I stood there for a minute - nothing was said, I left the room."


      Other witnesses testified that they heard claimant tell the Supervisor that he would not work on his rest day. The Claimant gave the Supervisor no reason for not working on his rest day. The Signal Foreman also testified that Claimant never gave him a reason why he did not want to work.


      The Supervisor was asked by Claimant's representative if he asked Claimant what his reason was for not working and the Supervisor replied:


I ~ "He did not give me the opportunity to inquire but made a
              statement that you are not going to tell me that I am going

              to work on my rest days.°.


              Another signalman testified:


                "Q. Would you give a statement of the facts concerning the incident under investigation.


              A. At approx. 3:x+5 pm. Mr. Peyla came into the signal office

              and asked Mr. Tweedy if he had to work on his off day.

              Mr. Tweedy said "yes' and Mr. Peyla said, 'I do not have to

              work on my day off, and you cannot tell me that I have to

              work on my day off.' Mr. Peyla walked out the door and

              that was the end of the conversation."

              (From statement of Signalman G. Niemeyer).


      In the investigation Claimant did indicate that he had things to do on the Saturday involved "personal reasons" and one of these was to "take my month old baby to the doctor for a monthly check up, she was a month old that day, and she had a rash all aver her head and she had something wrong with her eyes. That was my reason for not wanting to work." The record does not indicate that the Claimant gave such reason to the Foreman or to the Supervisor.

Award Number 23Pt?9 Page 3
 .,
                        -Docket Number SG-23972


    The Carrier has a right to direct its work force. Employer are expected to comply with the instructions of their Supervisors, except where a proven safety hazard may be involved. It was Claimant's obligation to comply with the instructions of his Supervisor sad then handle through the grievance procedure if he considered that his agreement rights were violated or that he was mistreated. The rule has been briefly stated many times "Comply and then complain".


    Based upon the evidence in the investigation, we find that Carrier's dismissal of Claimant for violation of Uniform Code of Safety Rules, General Rule N, Part 3 - Insubordinate, was not arbitrary, capricious or in bad faith.


          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;


    That the Carrier and the Employer involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1931+;


    That this Division of the Adjustment Board has jurisdiction aver the dispute involved herein; and


          That the Agreement was not violated.


                          A W A R D


            Claim denied.


                                NATIONAL RAILROAD AnfUSTMENT BOARD

                                By Order of Third Division


    ATTEST: Acting Executive Secretary

    National Railroad Adjustment Board


    BY . Rosemarie Brasch - Administrative Assistant


    Dated at Chicago, Illinois, this 26th day of March 1982.


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