(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Atchison, Topeka and Santa Fe Railway Company

(a) Carrier violated the rules of the current Clerks'-Agreement at Los Angeles, California, on August 24, 1979, teen it wrongfully discharged Mr. J. Natividad from service, and

 (b) Mr. J. Natividad shall now be reinstated and compensated for all monetary loss suffered commencing August 24, 1979, and continuing until such time that he is reinstated as a result of such violation of Agreement rules.

 (c) The Carrier shall now be required to pay 10% interest compounded daily on all wages wrongfully withheld from Mr. J. Natividad commencing August 24, 1979.

 OPINION OF BOARD: The Claimant, on July 20, 1979, was directed to attend a
 formal investigation. The letter of charge read in pertinent
 part:

Subsequent to the investigation the Claimant was dismissed from the service of the carrier.

 There are conflicting versions of what occurred on the day in question. The testimony of the Claimant and the testimony of Yardmaster McDaniel adequately reflect the differing view points on the facts. Yardmaster McDaniel testified that Mr. Natividad reported to the tower approatmately 7:30 a.m. on the day in question. When the Claimant determined that there were no cuts to be worked up, he asked Mr. Marshall, Asst. Yardmaster, if he could go to the freight office and was given permission to do so. Before the Claimant left, McDaniel testified that he informed the Claimant that as soon as an engine became available that they were going to be weighed and that the Claimant was going to be the Weighmaster. McDaniel then testified that the Claimant had not yet returned by 8:45 a.m. and that he tried to locate the Claimant at various locations including the freight office and could not find him. The Claimant returned to the tower at approximately 11:00 a.m. Upon h


to relieve Clerk Rodriguez and he was said to have refused to comply with these instructions four different times before he left the tower. Later, it was learned he did relieve Rodriguez. The Claimant testified that he left the tower to get a cup of coffee about 8:15 a.m. and returned at 9:00 a.m. and asked McDaniel if there were any tracks to be weighed, to which he received a negative reply. He contends that he remained there until 9:30 a.m. when he asked permission to go to the freight office to pick up a time sheet. He testified he arrived at the freight office at 10:00 a.m., picked up the time sheet and filled it out. He also indicated that he used the restroom and then he bought a cup of coffee before returning to the tower at 10:50 a.m. His testimony then indicates that when he returned he was confronted by Mr. McDaniel who was yelling, using profanity and one time made an ethnic reference. The Claimant testified that he then complied with the directives and relieved Rodriguez.

 Based on the testimony of McDaniel, Natividad and other evidence in the record, the parties each made a number of arguments in support of their respective positions. The Carrier suggests that the Claimant's behavior is a flagrant violation of his employment responsibilities. They argue that there is substantial evidence to uphold the charges. In addition to the testimony of McDaniel, they direct attention to testimony of Assistant Yardmaster Marshall, which they contend corroborates that of McDaniel. The Carrier also contends that the past record of the Claimant justifies the permanent dismissal.

 The Organization argues that there is little evidence to support the charge. Moreover, they contend there is no evidence that there was any work to be performed. It is also argued that he had permission to leave his assignment. They suggest that the Claimant's absence is much gyre brief than suggested by the Carrier and even more important, it did not result in any delay in the Carrier's operations. In respect to the portion of the charge regarding insubordination, they contend he cannot be found guilty. They point out that he went immediately downstairs and began weighing cars. The Organization also makes a due process argument regarding the conduct of the hearing officer and his method of questioning the witness.

 In reviewing the evidence and the arguments of the parties, it is the conclusion of the Board that there is substantial evidence to support the charge. The evidence is substantial enough to conclude that when the Claimant was given permission to go to the freight office, it was clearly communicated to him that he would be responsible for weighing cars and that he should be available to perform such duties. Moreover, we are of the opinion that McDaniel, Marshall and the Claimant all understood that if an engine became available for weighing before he returned that he could be contacted at the freight office. It is further evident from the record that the Claimant was gone and was no where to be found from approximately 7:x+5 to 11:00 a.m. contrary to instructions to be available to weigh cars. Regarding the insubordination, there is substantial evidence to conclude that even though he ultimately complied with the orders to weigh the cars, the Claimant acted in an insubordinate manner toward McDaniel. Insubordination has to do with more than technical compliance with orders. It also involves the Employee's manner and deportment in receiving instructions. Although the Claimant ultimately complied he did not do so without several refusals and without leaving the Yardmaster with the distinct impression that he would not comply.
                      Award Number 23866 Page 3

                      Docket Number Ch-24068


The evidence regarding the charges is conflicting, however, that does not preclude the Carrier from a conclusion of guilt. The Carrier hearing officer is entitled to our deference in respect to the resolutirn of evidentiary conflicts and the assessment of credibility so long as his conclusion is supported by substantial evidence. We believe there is substantial evidence to support the Carrier's decision to give more weight to McDaniel's testimony. Assistant Yardmaster Marshall's testimony corroborated McDaniel's. He testified that it was 7:45 a.m. when the Claimant first left and that contrary to Claimant's testimony the Claimant did not contact the tower anytime between 7:45 a.m. and 11:00 a.m. In addition, he also testified that when the Claimant requested permission to go to the freight office he replied "... Yes we can get a hold of you over there." This coupled with the Claimant's testimony that "... I advised him I would be checking is with the head clerk (in the freight)..." is substantial evidence that McDaniel was correct in expecting that he could reach the Claimant at the freight office. Marshall also corroborated McDaniel's testimony and the testimony of Mr. Hamilton, Agent, that the Claimant could not be located at the freight office or anywhere else. This all adds up to support the conclusion that the Claimant was not available as instructed to weigh cars. Moreover, in respect to the portion of the charge relating to insubordination, Marshall's testimony was similar to McDaniel's in terms of the Claimant refusing four times to weigh the cars. Marshall also reported that McDaniel did not use abusive language as the Claimant contended.

 The arguments made by the Organization failed to overcome the prima facie case established by the Carrier. The Organization relied heavily on the fact that there was no delay to operations caused by the incident. However, while this might mitigate the charge to some degree, it doesn't change the fact that the Claimant failed to follow instructions to be available to weigh the cars. The Claimant simply doesn't have any valid excuse for his unavailability for such a significant length of time. We do not believe the Carrier acted arbitrarily in assessing some discipline. Regarding the due process argument, we find it unpersuasive.

 ' The remaining question is whether dismissal is justified for the instant offense. The Carrier argues that the past record justified permanent dismissal. However, the Carrier, as best we can determine, has not included a copy of the actual retard. They did make some notations in their submission about his record. However, there is a certain ambiguity involved in their remarks. Therefore, we are left to assume based on the past record as noted in the Carrier's submission, that the Claimant has had only two incidents involving discipline, one related to the instant offense and one unrelated. We also are left to assume that the Claimant's retard is free of any related offenses far approximately five years and free from any discipline far four years. It is our belief that the past record, as it is in the record, isn't so bad and that the offense isn't so serious that the Claimant should not be given one last chance. We direct the Claimant be reinstated with rights unimpaired but without pay for time lost.
 Award Number 23866
 Docket Number CL-24068

 Page 4

        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;


The 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 Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


A W A R D
Claim sustained in accordance with the Opinion.

 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division

 Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 /

 BY
 l.cv
        Rosemarie Brasch - Administrative Assistant


Dat d at Chicago, Illinois, this 28th day of peril 1982.