Case No. .39


PARTIES TO DISPUTE:
    Brotherhood of Maintenance of Way Employees vs Norfolk and Western Railway Company


STATEMENT OF CLAIM:

      1. The Carrier. violated the effective Agreement dated February 1, 1951, on December 19, 1978, when it dismissed claimant C. J. Bergman. .


      2. The dismissal of claimant was excessive, capricious, unwarranted and unjustified. The claimant now be restored to service with seniority and benefits unimpaired and payment allowed for the assigned working hours actually lost, less any earnings in the service of the Company.


FINDINGS:
This Board upon the whole record and all the evidence finds that:

 The Carrier and employee involved in this dispute are respectively Carrier and employee within the meaning of the Railway Labor Act, as amended.

      This Board has jurisdiction over the dispute involved herein.


OPINION:

      Claimant was an Extra Gang Laborer on the date of events


germane to this dispute -- November 2, 1978. He had about two

 and one-half years of service at that time. On that date, the

 Roadmaster in charge observed the Claimant driving spikes with
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a sledge hammer. According to the Carrier, the Roadmasterinstructed him, via-' the Claimant's foreman_ to use a spike maul instead -- .

 the proper tool for such work- Some fifteen minutes later.
 the- Roadmaster observed the Claimant remove his hard hat and
 shirt. The Roadmaster advised the foreman- to correct this
 error, who. ordered the Claimant to replace both in compliance
 with safety regulations. The Claimant refused. The Roadmaster
 then issued such order directLy and warned that failure to comply
 would- result in. his removal from service pending an investigation.
 As be walked away from the conversation, according to the-Road
 master, he was grabbed and-spun, around by the Claimant; he advised
 the CIsimant he was out of service. As: he walked away again,
 the Claimant purportedly knocked his: hard. hat to the ground and
 implied that he would do harmlto the Roadmaster by use of a
 weapon at. some future date when he was inspecting along the
 line by use of a Ka-rail. , .
 According to the Claimant, he admits refusal to return his shirt and hard hat to use, contending a bad acne problem he had.would clear up if the sun could get to his skin. He also admits accidentally flipping off the Roadmaster's hat while trying to delay his departure in order to discuss the matter; he denies issuing a threat as charged.
      While witnesses at the hearing gave varying versions of the

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 events, the result was clearly insubordination by the Claim
 ant both to a foreman and Roadmaster. Such action was in
 excusable and condoning it where proper and properly issued
 orders are concerned would undermine the relationships of the
 supervised and supervisor, not to mention the obvious adverse
 effect on well-conceived rules and regulations. We find no
 reason to believe such actions were in jest or other than
 seriously taken. Wbile we shall affirm the Carrier's actions °
 here, we would point out that all witnesses called. to give
 testimony at hearings are obliged to be fully responsive, in
 cluding Roadmasters.
 AWARD:
 Claim is denied.

 James F: Scearce f
 Neutral Member
 l.1lf~1~
 G. C. Edwards W. E. LaRue
 Carrier Member Organization Member

 Dated at~ ~ ---hC this day of / ~l8

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