PARTIES TO DISPU1E:

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

 (1) The dismissal of Track Laborer L. W. Bandy for alleged violation of Rules 801 and 802 was without just and sufficient cause and on the basis of unproven charges (System File hbd-80-132/287-17-A).

 (2) The claimant shall be reinstated with seniority, vacation and all other rights unimpaired and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: On July 10, 1980, the Carrier dismissed Claimant from service
 for allegedly committing the two following instances of
 insubordination: 1) failing to perform work as instructed and, 2) failing to
 report to the District Manager's office as instructed. In addition, Claimant, a
 Laborer on Extra Gang 230, purportedly directed vulgar, profane, and-disrespectful
 language at his Assistant Foreman. Claimant requested a formal investigation
 pursuant to Article 14 of the applicable Agreement.

 At the investigation held on July 24, 1980, Claimant's version of the July 10, 1980 events sharply conflicted with the declarations of his supervisors. According to the Foreman of Extra Gang 230, Claimant insisted on constantly arguing with him. The Assistant Foreman told Claimant to stop bickering with his Foreman and to do his assigned work. Claimant allegedly responded to the Assistant Foreman with vulgar and abusive language. A short time later, Claimant said he was ill after the Foreman had denied Claimant's request that he be taken to a place where he could obtain some food. The Foreman permitted Claimant to leave the job site, but the Foreman specifically instructed Claimant to report to the District Manager's office before leaving the property. Instead of seeing the District Manager, Claimant went directly home.

 Claimant stated he merely asked if he could obtain some food after he observed the Foreman having a snack about an hour before the scheduled lunch break. Even though the request was denied, Claimant testified that he continued to adequately perform his assigned duties. Also, Claimant said he truly became ill and asked to be relieved. According to Claimant, the Foreman gave him permission to go home and told him to bring a doctor's excuse when he reported back to work.

 On July 25, 1980, the Carrier affirmed its previous decision to discharge Claimant.


The Carrier has presented substantial evidence proving that Claimant committed the charged offenses. By his own testimony, Claimant admitted that he kept badgering his Foreman when he should have been concentrating on his work. Even if Claimant was legitimately ill, he should have obeyed his foreman's order (to report to the District Manager) before going home. Though Claimant denies that he was told to report to the District Manager, this Board cannot resolve this conflict in testimony. The Carrier could reasonably decide to rely on the Foreman's testimony as opposed to Claimant's self-serving denials. Lastly, while profane language is commonly used by workers, Claimant was purposely directing his abusive language at the Assistant Foreman and Claimant intended to personally insult his supervisor.

 During his short tenure, Claimant had accumulated a poor disciplinary record. Claimant had recently been dismissed for committing insubordination. He was reinstated to service on a leniency basis and the reinstatement was effective on the date the incident herein occurred. The prior discipline obviously had no rehabilitative effect since Claimant committed precisely the same offense on his first day back to work. Therefore, we find the assessed penalty was commensurate with the proven offense.

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

        That this Division of the Adjustment Board has jurisdiction 0V4__1_T-_ttM~

dispute involved herein; and ,,';~ w~., p!~

        That the Agreement was not violated.


                        A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
        National Railroad Adjustment Board


y
        Rosemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 14th day of July 19$3.