The Claimant was regularly supervised by Mr. Eulogio Chavez, an employee with similar tenure as Mr. Contreras and was recently promoted to foreman by the Carrier. Mr. Chavez' crew was assigned to work with the crew supervised by Mr. J. Travers, (known respectively as "South Denver" and "North Denver") by Roadmaster J. L. Vialpando. The Roadmaster's uncontroverted testimony was that the project required expedition and his expectation was that Mr. Chavez would learn from collaborating with the more experienced Mr. Travers.

All parties agree that the principals knew and understood that Mr. Travers was a Foreman for the Carrier and his authority was equal to Mr. Chavez, and subordinate to Mr. Vialpando.

The crews commenced work at 8:30 AM. After approximately an hour of observation Mr. Travers approached the Claimant and instructed him to remove rail plates.

The demeanor of both men, the "order" and the alleged "insubordinate" response by the Claimant are inapposite in the record but reliable evidence establishes that Mr. Chavez was asked to participate in the conversation between Claimant and Mr. Travers. Foreman Chavez directed Claimant to comply with the instruction.

The result of the incident was that the Claimant opted to go home ill and the Carrier officials saw to it that he was given a ride to the station house after the Roadmaster was summoned and arrived on the scene to confer with all the participants.

Recognizing that it bears the burden of proof in a discipline case, the Carrier emphasizes that its determination of insubordinate conduct was not the result of a "set-up" or vendetta designed to compromise Mr. Contreras' employment. It is admitted and established that the Claimant knew Mr. Travers was a Foreman and had worked for him with his section crew. The request to knock off the loose plates with the hammer was within the claimant's job description and also represented an accommodation to his physical condition in that Travers only directed that the "loose" plates be dislodged in order to speed up the project.

The balance of the testimony establishes that it was the Claimant who decided to balk at a reasonable order, then seek to be excused from the balance of his shift. By any observation he choose in a deliberate fashion to avoid the directive issued by Mr. Travers. This is insubordinate conduct, it damaged the operation on the shift, caused both Foremen and the Roadmaster to cease other duties and respond to Claimant's argument.

This conduct has been established by a wide measure of the proof to be insubordinate. Cases between this Organization and Carrier have upheld discharge for insubordination. This case should not be determined differently as the Carrier has met its burden of proof.

The organization argues that three things inure to its viewpoint being correct in behalf of reinstating the Claimant.

First, Claimant did not receive a fair and impartial hearing per Rule 29.

Second, because the Carrier has failed to prove the charges against the Claimant they cannot stand.

Third, the discipline imposed was arbitrary, capricious, harsh and excessive. Thus it must be reversed.

The Organization asserts that the nature of Travers' conduct supports the view that he instigated Contreras' leaving by his mean demeanor, loud voice and drew upon the past where these men had an established "personality conflict". This led to the stress which necessitated that he take off the rest of the shift in order to ease the neck and back pain he was experiencing. All Claimant contributed to the incident was his "inarticulate responses" to Travers' questioning of what Chavez had originally directed the Claimant to perform.

Further, this case is like Third Division Award 21291 where a supervisor resorted to "inflammatory, bullying verbal bombast" against an employee. Also, Travers impeached himself to the extent that none of his testimony should be credited.

There was a safety factor at play here and the supervisors attempted to override it except for Mr. Chavez, who directed the Claimant in accordance with his physical abilities.

Use of the prior record of the Claimant was not warranted and constituted an unfair bias against Mr. Contreras. It should not be used against him in this case because it has no relation to this incident or the proof of what is alleged.

The allegation that a fair hearing was not afforded the Claimant is not supported by this record. There was notice of the hearing furnished and the Claimant attended, representation by the General Chairman (who also had a continuation granted) and Mr. Calderon was present as a witness. This complies with procedural due process and Rule 29.

95-3-92-3-946