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                                              Case No. 71

                                              Docket No. rU-81-92


          Parties Brotherhood of Maintenance of Way Employes

          to and


                      Dispute Southern Pacific Transportation Company (Texas and Louisiana Lines)


          Statement Claim of BMWE and Houston Division Machine Operator David of Gibson for an arbitrary and penalty payment of 8 hours at his Clam respective straight tire rate of pay, alleging not being allowed to work his regular tour of duty and him not being advised as to why.


          Findings The Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employee, within the meaning of the Railway Labor Act, as amended, that 153.3 Board is duly constituted by Agreement dated July 19, 1979, that it has Jurisdiction. of the parities and the subject matter, and that the parties were given due entice of the hearing held .

          The Maintenance of Way Local Representative, under, date of April 24, 1981 wrote the Regional Manager as follows:


    "We are presenting to you a claim on behalf of David

    Gibson, Houston D1V7.81Gn Machine Operator, for 8 hours

    at his straight-time rate of pay account of not being

    allowed to work his regular tour of duty. Ch Friday,

    March 27, 1981 Mr. Gibson reported that a district

    MofW Manager B. L. Rinehart's Office at 5820 Wallisville

    Road to receive his daily line-up, at which time district

    MfW, Manager, B. L. Rinehart sent him home account of .

    having tennis shoes on. Mr. Gibson, however, wears this

    type shoe while driving to work, then puts an his regular

    work boot when he arrives at the job site. Also Mr.

    Gibson has not, at this time, been advised in writing

    for this discipline as provided under Article 14 of the

    current agreement between the Southern Pacific Transportation

    Canparry and the Brotherhood of Maintenance of Way Employees.

    We are now asking that Mr. Gibson be paid 8 hours at the

    straight time rate of pay in addition to any and all other

    r pay he may have already seelaed due to this violation."

                        Page 2 Award No. 5-7


    The Pegional MofW Manager replied on May 6, 1981 as follows:


        "Investigation reveals that Mr. Gibson was in violation of Rule "J" of the "Rules and Pegulations of the Maintenance of Way Structures" for not wearing proper footwear after being told the previous day he would not be allowed to work without safety shoes.


        Since Mr. Gibson was told he world not be allowed to work unless he wore safety shoes, and he chose not to follow District ~Ioifir7 Manager's orders, the claim as presented is without basis and is denied."


    Said Rile e "J" reads-


        "Fhployees reporting for duty must be neat and clean in appearance, suitably clothed and wear their hair in a manner to permit sale performance of their duties.


        Prescribed uniforms, UpteCtWe clothing and een,Trnwnt, must be worn while on duty.


        Fhployees mll~t wear shoes that afford vi·n support and

        protection to ethe ~et 'owning repai


                          ,

        upon, in or udder engines, f-reig t of passenger cars; while performing repair work on or about track or structures; and while on duty in train, engine or yawl service.


        Cpan-toed shoes, canvas shoes and lounging shoes are

        unsuitable for these typed work and are prohibited.

        *.~ s giving support to the e ankles; low

        heels afford firlrier footing and make standing and walking

        safer."


    This claim was appealed to the highest designated- officer who


handle such c7.simg who advice as follows:

        "Regional MDfW Managers investigations reveals that Mr. Gibson was told the previous day that tennis shoes were not proper footwear and ._mss told by District Manager Ryan Hart that he was in violation of Rule "J" and would not be allowed to work without proper shoes. do Friday, Mardi 27, 1981, Mr. Gibson arrived at the job site after the starting time of the gang, again without proper footwear. Since Mr. Gibson chose not to follow district MofW Manager's instructions and again wore tennis shoes to work, he was held not allowed to report for duty.


        Therefor, yaw claim as presented is without basis and respectively declined."

w c
                                  Page 3 3-4 Yq - Award No. 57


              The teal Chairman responded thereto and stated:


                "You were advised during the conference that Mr. Gibson was not at the job site with tennis shoes on, he reported to the District Manager's Officer before work time and was denied work. It is our position that when an employee is denied work of his regular assigned position he is disciplined and Mr. Gibson was not advised in writing as outlined in Article 14 (a) .


                It is our position that this is a just claim and will be handled as such."

          The Hoard finds that there is a conflict in fact necessary to a proper resolution of the instant dispute. If, as is alleged by Carrier, that Claimant had reported after the starting time of the gang after being forewarned then he was in violation of Rule "J" then Carrier acted appropriately. Such action is not construed to be discipline. On the other hand, if the facts are as asserted by the F1ployees, to wit - that Clai*ant was at the District Manager's Office before work time and that he changes his shoes at the job site and does not work wearing tennis shoes, then the EYployees are right.

          The Hoard an the state of this record can not resolve the conflict of facts therefore it will. be returned to the parties for disposition on the above basis.

          ARM: Claim disposed of as per findings.

                  Cue: Carrier is directed to make this Award effective within thirty (30) days of date of issuance shown below.


          M.~istie, E1np a Member C. E. , Meter


                            Art

            '. T. Van Wart, ~T rn and Neutral Msmr Issued at Wilmington, Delaware, May 29, 1982