AWARD N0. 38 '_" Case No. 40
Case No.:..41

 PUBLIC LAW BOARD NO- 1582',

 PARTIES) -ATCHISON, TOPEKA AND SANTA EE RAILWAY COMPANY

 DISPUTE) ~ BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

 STATEMENT OF CLAIM: -

 Case No. 40. Claim in behalf of former Trackman L. Gurule, Jri;-^~" DTew Mexico .,Division, for reinstatement to his former position viith '. seniority, vacation and all other rights unimpaired and compensation => for wage loss beginning July 23,-1974.

 Case No. 41. Claim in behalf of former Trackman L. Gurule', Jr.-, ivew.l~lexico Division; for reinstatement. to his former positien-with~'-seniority, vacation and all other-rights unimpaired and compensatiori°:v.

 for-wage loss beginning November 6, 1974.

 FINDINGS: This Public Law Board No. 1582 finds that the parties.'--'.herein are Carrier and Employee within the meaning of the Railway---~·,.. Labor Act,,, as amended, and that this Board has jurisdiction:

 In this dispute the claimant°was charged with being insubordinate '_
 while. working at Willard, New Mexico on July 23, 1974 and with the - -
 possible violation of Rules 16 and 17. As a result of the investi
 gation held August 1, 1974 the claimant was found guilty of being.:; -
 insubordinate and in violation of Rules 16 and 17 and was dlsCharged'`'
 from `the service of the Carrier. -

 The ,Organization filed a claim for reinstatement of the claimant..'''~ .. -with compensation for all time lost. There was an offer by the Organization to compromise the claim on the basis of reinstating the claimant without pay. The Carrier accepted this offer but. the.. , claimant. refused the compromise offer.

 At first the claimant told the roadmaster at Belen he would report ' for duty, but later refused to do so. Another.investigation was held to develop the facts and place the responsibility in'connectici~. .. with -the claimant's absence from duty without authority. Pursuant to that. investigation, the claimant was found guilty of being absen-E
from .duty without authority and was again removed from service.', , .'~

 Again the Organization filed claim for reinstatement of the claimant' -
 with compensation for wage loss beginning November 6, 1974. This -
 portion of the claim is covered in Case No. 41. Again the.Carrier.,
 offered to reinstate the claimant on a leniency basis, but the Or- '
 ganization refused.
 p,,3 is8~. -:
 Award No- 38
 Page 2 - ..

 ':-A-fter a careful review of the transcript and the record, it."a~psars ~=
 thaw Case No. 40 was disposed of by settlement between the claimant'-s-.?.: repVesei~,t4t~ve and the Carrier. The Board did review the rec~xd to..';;°. de tor,.minq_ Szhether or not there is any justification in the first .case:..-.. Certainly an offer of reinstatement without pay was reasonable; and.=there would have been no justification to pay the claimant for. time ==~_

 --lose ,s.ince evidence indicates he was guilty as charged.

 In-Case No. 41 evidence of record indicates claimant agreed to return _
 ta;work. and was supposed to ,report for work October 3, 7974 but .za-;=;;'...u;_
 `fused ·to da so. - : -- '~_:,'zYf=

 In v Case No. 40 testimony reveals that claimant made a rather'nasty.Y·.~
 remark to his foreman which actually constituted insubordinaticn.°. _..-.·~_
 The foreman made a reasonable request for the claimant to pick up. -_=-.
 his shovel and to move over to the main line, and the claimant told "~·~.
 the foreman to perform a feat which is performed by very few men.:
 °- The 'claimant was guilty of insubordination, and certainly this jus~`~'-~-*-

 -- _ tifies ,'permanent dismissal. _ ='r~ `*"---

 Howaver, in view of the fact that the Carrier has offered reinstate=-"-_,4,
 ment.on several occasions, it is the opinion of the Board that,thew.=
 clai~ziant should be reinstated. However, there is no justification-" -
 for ordering pay for time lost. There are no supporting factors'-in v-. -
 favor.of the claimant in either Case No. 40 or 41. W -, . - -
In Case No-. 40 the claimant admitted his guilt, although he did in--. sist his remarks were not directed to the foreman, although testimony.,,'
 -.indicates otherwise. In Case No. 41 the claimant refused to report -'
 .:for-work after agreeing to do so, and certainly was absent from duty.'.',-

 `w2 Id be reinstated

 is_,`the finding of the.Board that the claimant shou with-seniority and all other rights unimpaired but without pay for time lost. The claimant will have to comply with the physical.2nd
other requirements set forth by the Agreement.

 AWA_RD:- Claim sustained as per above.' '

 ORDER:- The Carrier is directed to comply with this award within-

 1FTrty._days from the date of this, award.

 'res ton J . Mffo, , airman

Carri Member