This Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employe within the meaning of the Railway Labor Act as amended; that this Board has jurisdiction over the parties and the subject matter of the dispute herein; that this Board is duly constituted by an Agreement dated July 23, 1982; and that all parties were given due notice of the hearing held on this matter.

On January 25, 1983, Claimant, a Section Laborer on Gang 114, was working with a large contingent of Maintenance of Way Workers who were dumping ballast on the salt flats. There were two foremen at the job site. Foreman Thompson gave Claimant the keys to the gang's truck and directed Claimant to follow the work train west to the next work location. While Claimant was waiting by the truck for the train to move, Foreman Boggs instructed Claimant to assist other gang members in preparing the train for unloading the ballast. Claimant went to Foreman Thompson who told Claimant to keep the keys and drive the truck after he complied with Foreman Boggs' instructions. Another Laborer, who witnessed the incident, confirmed that Foreman Thompson informed Claimant that Foreman Boggs was in charge. Claimant returned to the truck. When Foreman Boggs again directed Claimant to help the men open the train, Claimant refused to comply. Both foremen approached Claimant and Foreman Boggs repeated his order several times. Claimant remained by the truck. Foreman Boggs reiterated the order one more time and warned Claimant that he would have to go home if he failed to comply. Claimant refused to obey. A short while later, he was transported to his home. Claimant worked the following day but commencing on January 27, 1983, the

Public Law Board No. 3241 Award No. 3, Page 3

Under the circumstances in this case, the Carrier properly exercised its discretion under Rule 20 to withhold Claimant from service pending the investigation. However, withholding Claimant from service did not raise any presumption that he committed the charged offense. The Carrier retains the burden of proving that Claimant committed insubordination.

Initially, Foreman Boggs' order was inconsistent with the instructions Claimant had previously received from Foreman Thompson. Not knowing which order should take priority, Claimant properly returned to Foreman Thompson for guidance and clarification. The inconsistency was resolved when Foreman Thompson. told Claimant that Foreman Boggs was in charge. Nonetheless, Claimant returned to the truck. Instead, he should have complied with Foreman Boggs' instructions and then moved the truck in accord with Foreman Thompson's order. Even if Claimant was still genuinely confused, any doubt was removed when both foremen approached Claimant and Foreman Boggs unequivocally directed Claimant to assist his fellow workers. Despite receiving repeated orders, Claimant steadfastly refused to comply. Moreover, Claimant became argumentative towards the foremen. Claimant had a sufficient understanding of the English language to realize that he was given a direct order.

Contrary to the Organization's arguments, Claimant was not given an option to go home. Rather, Foreman Boggs warned Claimant that his refusal to comply with his order would leave

The Carrier convened an investigation on August 2, 1983. to determine if Claimant committed insubordination. Following the investigation, Carrier suspended Claimant from service for six months and credited him with the time he had been out of service pending the results of the disciplinary investigation.

The Carrier contends that Claimant was both insubordinate and quarrelsome. The two foremen unequivocally testified that in spite of receiving direct orders to assist the gang members, Claimant stubbornly refused to comply. Failure to perform work when ordered is a serious offense which justified withholding Claimant from service. Inasmuch as Claimant's record revealed that Claimant had committed insubordination in the past, a lengthy suspension was the appropriate penalty.

The Organization argues that Claimant was confronted with

regarding for him to

confusion. exclusive indirectly

Public Law Board No. 3291