Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The dismissal of Foreman P. F. Young on March 21, 19q9 for allegedly 'falsifying timesheets far March 7r 19T9' was without dust and sufficient cause sad wholly
(2) The dismissal of Foreman P. F. Young on March 28, 1979 far alleged 'Insubordination on March 14, 19't9' was without suet and sufficient muse end on the basis of unproven and disprovan charges (System File 0#55/D-2294)

 3) Foreman P. F. Young shall be afforded the remedy prescribed in Rule 18~e)."

 CPniION OF HOARD: There are actually two separate mass here far the Board's
 determination. It must first deride whether (artist's action
 in discharging Claimant far having allegedly falsified timesheets far March Ts
 19'(9 we with or without just and sufficient cause, and then: it the Board's
 answer is 3n the negative, whether Carrier's dismissal of Claimant far alleged
 insubordination as March 14, 19't9, is a totally unrelated situation, was with
 out just and suftideat cause.
t3m98h,Beta, according t0 CLiTiQr'8 ROadmBitGr, Claimant's iumediate supervisors
 after he had arrived at Carrier's Davenport freight house at approximately
 12:30 P.M. as March q, 19'(9, he observed a company truck assigned to Claimant
 at the freight house at about 12:45 P.M, with a Section laborer who was sup
 posed to be working with C7aimnnt alone is the truck. The Roedmnster states
 that upon inquiry of the Laborer as to where his Section Foreman (Claimant)
 wag, that the laborer told him that Claimant had gone home sick and had told
 him to go back to the freight house and find samethiag to 30. The Roadmaster
 also states that at apprasimately 3:00 P.M. that same date, while he was in
 the company of an Assistant Manger of Maintenance for a terrier subsidiary,
 he drove to where the Laborer was then working, a few blocks. from the freight
 house, and in the presence of the other (terrier officials again asked the
 laborer where Claimant had gee. According to the Poedmaeter, the laborer
 "again told me that Mr. Young teed game hams early approximately 12 noon sick."
 The second Carrier official, asked whether he recalled the Laborer's response
 to the Roedmaster, said: "Yes, he said Mr. Young went home sick." Thereafter,
 the Roadmaster submits, rhea he wag going over weekly timesheets on Marsh 14,
 19T9, he "noticed that Mr. Young had put is eight hours for himself on
 March 7s 19T9s (and) on march 21, 1979 at 1:41 Pm* (he) dismissed Mr. Young
                    Docket Humber MW-23771


far falsifying his timesheet for Wednesday, March 7, 1979."

 It is uaiisputed that when Claimant did is fact submit a timesheet or request for payment fan' time worked fns the period March 1 through March 7, 1979s 'fit he did show a full eight hours as time worked on March 7s 1979. The retard also shows that Claimant did not report fax' work, but called in sick on March 7, 19791, an& 'fit he had shown himself as being oft sick on those two dates on timesheets submitted fat the period March 8 through March 15, 1979·

        At a hearing accorded Claimant on April 9, 1979, he maintained that

he bad worked a full eight hours on March 7, 19'T9i he vas performing work at
 various locations is the Davenport area; he bad not told the Laborer he vas
 going home sick; sad, he bad given the laborer specific work to perform while
 he vent to perform other work* The Laborer vas present at the hearing as a
 witness for the Carrier, and after the Laborer bad testified a part of Cls3a
 ant's defense acme to be allegations that testimony of the Laborer did not
 substantiate testimony of the two Carrier officials as to shat the Laborer
 bad reportedly stated to them on Marsh 7, 1979. In this regard, it is noted
 that the Iaborero when asked if is fact he did tell the Poedmnster that
 Claimant bad gone home sick replied: "As I said because I said it real
 fast, a fast answer and wasn't thinking at that ties. I know he vent so I
 figured he went home, that is all." The laborer did., however, subsequently
 admit that he had told the Roedmster that Claimant lad gone hoes sick, and
 that he recalled the Poadmpster having asked, his the question twice. However,
 there appears to be a discrepancy as to the time Claimant had left the Laborer
 on his am. Here, we note Claimant states that he wd his laborer ate lunch
 is the campnxy truck in the parking lot o! a stave between 12:20 P.M* and
 1:00 P.M.; he was not feeling well at the time and took some aspirins; that
 after lunch, while emroute to Mt. Joy the received s call at about 1:30 P.M*
 concerning some trees down in the vi of EirkWOOd Boulevard; the? did
 same work at Mt. Joy at about 2:30 P.M.; and he "let Mr. Myers (the laborer)
 out at Galaes Street to drain svitches...betWeen 3 and 3:30 probably closer
 to 3:30." The Laborer attests to having had loath with Claimant is the parking
 lot and being with him until "about 3 o'clock" when, according to the laborer,
 Claimant "left the premises but he did not go home like I esid...I just gave a
 fast answer." This also as opposed to the contentions of the Hoedmaster that
 the laborer bad told him twice that the Claimant bad gone home at approximately
 12 noon on the day in question.

 Further discrepancies appear in the record as relates to the operation of the company truck on Marsh 7s 1979. ft is the Claimant's testimony that he had the track all day. He maintains that after he dropped the Claimant off at Gaines Street he sperm the rest of the afternoon checking out the trees-down report on Kirkwood Boulevard., washouts on the northside of a bridge toward Bast Locust Street, inspecting the Government Bridge pump station, and making reports of post holes on Iowa Street, before going back to the freight house to check that the laborer lied locked the door and then driving home in the company truck. The Claimant asserts that the Laborer did not hams the truck, and the Laborer alleges that he did not have the truck at all that day. Conversely, it is the Roadmaster's testimony that he not only observed the Laborer drive up to the freight house at 12:45 P.M. (when Claimant says they were at loath), but that
                    Axani Number 24158 Page 3

                    Docket Humber MW-23771.


he had in fact spoken to the laborer at that time. And, it is the testimony of the two (terrier officials that they sax the company truck parked at 3:00 P.4. in the vicinity of Gaines Street Yard when they were talking to the Laborer., and he had advised them Claimant had gong hams sick. The Hoard also antes that the Roe,dmaster maintains that rhea he last sax the company truck the laborer was driving it at apprwi~ntely 4:10 to 4:15 P.M.

 We have given careful. study to the conflicts in testimony, the total transcript and the extensive arguments presented by both parties ate, on balance,, we are of the opinion that there is sufficient evidence to substantiate the G9rrier's action in finding Claimant guilty as charged of falsifying t3mesheeta for March 7 r 1979· However, we do not believe that the discharge penalty was justified. There is no doubt that the offense for which Claimant was charged is a transgression where the penalty of discharge is held to be proper under a number of circumstances. At the same tame, as is the instant case, given all the facts of record, lesser measures of corrective discipline, short a? dismissal, are to be considered proper so as to impress neon an employe that a repetition of suds conduct x111 not be tolerated. In this regard, we note the Osrrier has argues that its decision was based upon Claimant reportedly having a past record "which dearly indicates a poor general work attitude, sad a prior incident involving falsification of timesheets." The Carrier has net, however,, presented anything of record to substantiate its contentions sad. the Organization, in defense of Claimant, states in its rebuttal submissions: "The Carrier did not present any guidance whatsoever that such alleged incidents
 were the subject of any investigation.' Furthermore., as concerns Claimant's
 past record, we note he has 46 years of service, the lest 38 as a faremnn. Certainly., while it was foolish of ham to have placed his fob and future employment in jeopardy by quit", eves it he had been sick, his total record of service does net stew ham to be an incorrigible

 employe. The Hoard having determined that the penalty of discharge was unreason. able and excessive as concerns the first use before us, it is necessary we therefore direct attention to Claimant's discharge far the second incident.

 The Claimant's dismissal is this second case stems Pram charges by the (terrier's Roadmaster that an March 14, 1979 he had given Claimant specific instructions to drill holes and install bolts is three pieces of rail and that Claimant had not followed his directive as concerned one of the three rails.

 on April 12, 19T9a a formal herring was held relative to osier's determination that Claimant was guilty of insubordination rhea he failed to caoplg with his supervisor's instructions. At the hearing the Rosdmsster testified, is principal part,as follows:

        "on march 14, 1979r I was in-Davenport. I arrived at Naheat Yard at approximately 2:30 P.M. Mr. P. F. Young (Claimant) and Section Laborer Myers were ~hA~ a broken rail on the east sad of the yard an the lid. At this tiineabout east-of where they were working I walked over sad. discovered that three rails had been changed out. Each of the tree rails had only 1 bolt hole with 1 bolt in each sad of the rail. I walked back...and I instructed Mr. Young to drill the remainder of the holes and install the missing bolts is these 3 rails before quitting for

                    Award Humber 24158 Page 4

                    Docket Number MW-23'x'(7.


        the day eves it it meant working this fob an overtime. Mr. D. T. Myers was present and witnessed my instructions to Mr. Young. Mr. Young told me that he would do this before quitting. On March 27, 19'(9, L..diecovered that 1 of the 3 rail that Mr. Young had been instructed to drill and install bolts is had not been dane...Ia reviewing Mr. Young's timeaheet. Foam PR 1, Mr. Yo one hour overtime for himself for drilling holes in rails, this being March 14, 19'(9...1 took these polaroid photographs at the location in the rail that vas not repaired... I shored these photographs to Section Laborer Myers ate. he agreed that this was one of the rails that Mr. Young van instructed to repair ...When I returned to Savanna on March 28, 19q9s I seat Mr. Young a letter terminating his employment relationship with the Oarrier far iasnbordiaetion for not carrying out any instructions of Much 14, 19't9."


It is to be noted that under the applicable files Agreement attar an employs has been notified he has bees disciplined !or an offense or incident he may request a hearing regardi.ag such determination by the Carrier.

 'The Section isbarer was called as a witness by the Carrier iaaeed3ately after the Roadmaster had completed his testimony and emmainatian. Asked by the herring officer whether everything the RoadmLster stated is his statement was true to the best of his knowledge., the Laborer responded.:

        "hell we drilled that very same night because the holes that he hen in the picture are not the holes that xe changed. How I know is because I xa7.loed down an the tract 2 or 3 ties to swim sure:


Upon further questioning or examination, the laborer did acknowledge that he understood the Roadmaster to have instructed them to drill holes and install bolts is rail other than that an which they we" Working at the time the instructions were given. This, notwi.thataadiag the tact that the Laborer maintained they had worked that nit la drilling holes and installing bolts in the rail they were working at the time. Asked whether he could, recall why the work they had bees instructed to do had not been done, the Laborer Said:

        "Well, I tell yon they had derailed same care up at the east end of the yard sad we went up to check that dernilent out sad to try to fix it sad all the while dust one man sad the boss (Mr. Young and I) and we could just do so much fns that shoat of time."


it is the Claimant's testimony that he bad not received any orders from the Roadmaster to drill and install bolts is the rail in question* He submits they did, however and the laborer were working on when he had a conversation xith the Roadmaster.
                      Aard Number 24158 Page 5

                    Docket Humber MW-23'('(1


Claimant ran recall having discussed a number of matters related to track conditions in the area with the Roadmsster; that he was going to have to raise a switch that was out of surface; and, directing the Roadmaster to look at a crossover that Claimant had found to be is need of having one of its switch points changed out. The Claimant maintains he completed those tasks and also worked one hour overtime drilling holes affil installing bolts is the rail he w Claimant submits includes landing tools driving from Nabant Yard to Davenport head4uarterso unloading the tools and locking up.

 It is Carrier's position that a supervisor must be allayed to properly instruct those employee under his jurisdiction is order to achieve and to meet specific operational demands. It asserts it would be inconceivable to expert the Carrier for service if its supervisors did not have vested authority to properly

instruct and discipline employee working snider their jurisdiction.


        As with the first cases, despite the conflicts in testimony., on

balance,, we believe the record supports the Carrier's findings that Claimant
 had failed to follow his supervisor's instructions. Again. howeverl we do
 not find the incident itseltp even when viewed in consideration of discipline
 attached for the first incidents that there was cause to impose a penalty of
 dismissal from service. Oertninlyp all employes have an obligation and responsi
 bility to honestly and faithfully listen to and foLloy the directive of super- .
 vjsary officials, It is a necessary requisite of the employs-employer T elation
 ship. Andy when there is a failure to obey alders or instructions then certainly
 the employer has recourse to discipline to seek to correct the conduct o! an
 employee but the exercise of this discretion most be exercised in a manner re
 lated to the degree of the offense* Here we are unable to comprehend the
 basis for the ultimate penalty of discharge from services except as the Car
 rier might have been motivated to ends a decision on the basis of its decision
 in the first case.

 We believe the time Claimant will have served up to the date of this Award rill be auttlcieat penalty for both offenses. Accordingly.* Claimant is restored to service with seniority unimpaired,, bat without compensation for tine held out of service.

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


        'amt the parties waived teal hearing;


That the Carrier sad the Enployea involved in this dispute are respectively Carrier and Hnployea within the meaning of the Railway Labor Act., as approved June 21j, 1934;

 That this Division of the Adjustment Board has ,jurisdiction over the dispute involved herein; and
                    Award Number 2158 Page 6

                    Docket Number MW-23771


        That the discipline pas excessive*


                        A i1 A R D


        Claim sustained in accordance with the opinion.


                          RATMDNAL RAILROAD ADJW24MT BOARD

                          By.Order of Third Division


AT1E.9'P: Acting Executive Secretary
 National Mallroad Adjustment Board

 By
 Rosemnrie Bras - A daiaistrative Assistant

 Dated at Chicago, Illinois., this 15th day of February 1983.
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