.% ,,



                                        Case No. 26


      PARTIES TO DISPUTE:

          Brotherhood-of Maintenance of Way Employees

          And

          Southern Railway Company -


      STATEMENT OF CLAIM:


          Laborer, David Willingham, 1704-33rd-St. , Sheffield,- AL -

          35660, was dismissed from seYvice for -alleged inattntion

          to duty, violating Southern Rule GR-4 and insubordination.

          Employees request pay for all time lost with vacation

          and seniority rights unimpaired.


      FINDINGS:

      Claimant entered Carrier's service on July 18, 1972,

      and at the time o= the incident in question was ecr,ployed as '-

      a laborer at Franklin, Alabama.

      By letter dated September 21, 1983, Claimant was notified _ to attend an investigation concerning charges that he was insubordinate on September 13, 1983.- An investigation was held on October 3, 1983. By letter=dated October 14, 1983, Claimant was informed of his dismissal from service for his conduct on the aforementioned date.

      The issue to be decided in this dispute is whether the Claimant was dismissed for just cause under the Agreement.

                                              ,gV

                                                ~/5 ~.L


The position of the Carrier is that Claimant was guilty _,
 of inattention to duty, insubordination,'and violation of
 Operating Rule GR-4 on the date in question, and was properly
 dismissed from service. °
 In support of its position, the Carrier cites the testimony
 of SupervisorJ.D. Benson. Benson testified that Claimant
 was sleeping while on duty, and that when he informed Claimant
 not to do so, he was verbally abused by Claimant. The -
 Carrier further cites the testimony of Foreman D. Lowery, who
 testified that he discovered Claimant sleeping in his truck and
 informed him that he would get in trouble if he continued to
 do so. The Carrier contends that the testimony given established -
 that Claimant was told on several occasions to refrain from
 lying down on duty and yet continued to do so. The Carrier
 further contends that the testimony established that Claimant was
 verbally abusive to his superior s-and that he failed to follow
 instructions as-ordered. The Carrier maintains that Claimants
 actions on the date in question constituted insubordination
 and inattention to duty. The Carrier further contends that
 Claimants actions constituted a violation of Rule GR-4,
 stating "all employees must follow instructions from proper
 authority, and must perform all-duties efficiently and safely". _
 The Carrier finally asserts that the dispute imposed was -
 not excessive. The Carries citesseveralawards holding that
 insubordination/failure to follow instructions constitutes
 grounds for dismissal. The Carrier contends that in light
 of Claimant's poor prior disciplinary record and the seriousness -
    PLB No. 3445

    . AWARD N0. 26

' CASE N0. 26-

    of the offense,-dismissal was the only appropriate disciplinary measure.

    The position of the organization is that Claimant was unjustifiably dismissed from service by Carrier.

    The Organization contends that the testimony at the hearing established that the other men on Claimant's shift were standing around and throwing rocks at the time Claimant was allegedly


    asleep in the truck. The Organization further contends that -

    Claimant was merely sitting in the truck with eyes closed, and

    was not sleeping. The Organization asserts that Claimant left-.

    the truck when asked to, thus following instructions given

    to him. The Organization alleges that since none of the

    other men was disciplined for standing around, the Carrier acted -


    arbitrarily by singling Claimant out for punishment. -

    The Organization further contends that testimony given indicated that Claimant was working at all times he was supposed


    to be, and that at no time was he actually asleep while on -


    duty.

    After a review of the entire record, the Board finds that the termination should be reduced to a lengthy suspension.

    It is not the purpose of this Board to rehear an investigation that the Carrier held but only to determine if the discipline imposed was arbitrary, capricioGs or an abuse o-f discretion.


        The Carrier has established through substantial, credible -

    evidence that Claimant was guilty of insubordination and failure

    to properly follow instructions. The testimony given by


                          - z -

                                                ~y S'Sr.~ ~


Supervisor Benson and Foreman Lowery indicated that Claimant was asleep while on duty and that he was insubordinate and abusive to his superiors. While we note that there is conflicting testimony concerning Claimant's actions, it is a well-established principle that the Carrier may decide issues of credibility and weigh evidence so°1ong as it does not abuse its discretion. In the present case,- the Board finds there is sufficient evidence to support Carrier's conclusion that Claimant was guilty of the above-mentioned offenses.
 Notwithstanding the above, we find that Claimant should be reinstated to service. We agree with Carrier that Claimant's

 actions on the date in question were inexcusable and warranted

 w'\'o`10> M1:.,`1 ·J itlc`. :i,`\sc·1'c·I', Ill Il,:ilt Of thef3it that 1 vi
 1 t C_.. giant

 ;~.~,t s~,aot's .,.._ ,.,·a; .t.\:._:v: .n;.,? ..,.tC ~·:` .w
                                    .a'_ _ , c`c., \i :._

not working at the time, we find that Claimant should be reinstated to service with seniority unimpaired, but with no pay for time lost.

 AWARD:
      Claim disposed of per Findings herein


                          Neutral Member


                                    .


                          Ct'rrier :Member .


                          ~t-r ~J ~~ p

                          QrgaqLzation Member


Date: // /~3 s-

                          4

                          q _