PARTIES TO DISPUTE
 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 AND

 SOUTHERN RAILWAY COMPANY
 STATEMENT OF IAIM ~, ,






- General Chairman handled the case up to and including the highest , -





By letter dated February 26, 1988, Claimant was notified to attend a formal investigation on charges that he had failed to comply with direct instructions from a ,superior. The formal investigation was conducted on March 4, 1988.. By letter dated March 18, 1988, Claimant was dismissed based on evidence adduced at the investigation.
The question to be resolved in this dispute is whether Claimant was dismissed for just cause under the Agreement; and if not, what should the - remedy be.

    On February 19, 1988, Claimant was instructed to rock switches by Track

Supervisor Taylor at Krannert Yard. At first, no loader was available to -
 load the necessary rock for Claimant. When Assistant Track Supervisor L. C. -
 Williams contacted Taylor, it was learned that a loader might be available
 later in the day. By about 11:00 a,m., it became apparent that no loader
 would be available and,after some delays, precipitated by mechanical
 problems in telephone communication, Williams instructed Claimant to oil
 switches at Krannert,Yard and Howard Yard (some 3/4 mile away from Kran
 nert). Claimant and R. L. Camp, with whom he was working, could not find
 the proper broom with which to oil the switches. Claimant and Camp then
 returned to Dalton,.Iwhere they had, begun the work day and, having completed
 40 hours that week, went home...

    The position of the Organization is that Claimant was dismissed without

I' just cause. The Organization maintains that the Carrier has not met its burden of proof in showing that Claimant did not comply with instructions. Further, the Organization contends, that whatever Claimant, may have failed to .

 do was the result of conflicting instructions from his various superiors.'
 The Organization also contends that because it could, not present a notarized
statement from Camp and because the Carrier coached its witnesses, Claimant_
 did not receive a fair and impartial investigation.
                                              a~h4s-s? I

The position of the Carrier is that Claimant was properly dismissed. The Carrier cites various testimony at the investigation to show that Williams told Claimant to oil the switches at Krannert Yard and Howard Yard, and that Claimant failed to comply with those instructions. The Carrier contends, by implication, that Claimant's instructions were changed in the

 course of the morning·and he should have followed his new instructions to. ,

 oil the switches. The Carrier also maintains that Claimant's contentions
 are not believable because on the date of the incident, he said he could not
 oil the switches because he did not have a broom to do so, while at the
 investigation, his reason was that he had not been instructed to do so.
 Finally, the Carrier. contends that failure to comply with instructions is a -
 serious violation justifying dismi.~sal and that Claimant should have done
 the work as instructed and grieved later.

 After review of the entire record, the Board finds.that.Claimant was dismissed without just cause and should be reinstated with seniority unimpaired, and with full back pay for time lost.

              I


The Carrier has not presented substantial credible evidence in the record to prove that Claimant failed to comply with instructions. The evidence shows that Claimant had at least two sets of instructions and that,,.,,I';"'' ·'. his ability to carry out the oiling instructions was hampered by the lack of

 the proper broom with which to conduct the operation. Moreover, there is no'
                                                          I


evidence that Claimant refused an order or that he was warned that if he'
 refused that he was subject to dismissal. Claimant appears to have not
 conducted the oiling 'operation for reasons of confusion and lack of

                            3

                                              3~t4 s 5 $

capacity, not because he was insubordinate.

 AWARD
Claimant is reinstated with seniority unimpaired, and with back pay for all time lost.

 ' ' l Neutral Member , ~,

 .. r . ,L

        _l~ - Q lffEnlT

airier Membe

 Or ization Me ber

 Date: ~Gl· l~ ~~

 4
                                3qqS-

                                      -ss


CARRIER'S DISSENT _
 ' _TO
 AWARD 58 OF PUBLIC LAW BOARD 3445

 By its Award, the Majority overturned the dismissal of an employee charged'with failure to comply with direct instructions of an assistant supervisor on the grounds that "Claimant appears to have not conducted the oiling operation for ,reasons of con-

 fusion arid lack of capacity,'not because he was insubordinate." However, the tes,t1mony in the investigation developed substanti,alevidence to the contrary, and the majority erred in sustaining

 the claim,. ,; , "~,

    With regard to the claimant's alleged "confusion" as to his


instructions, the,assistant supervisor was steadfast in his _'
 testimony that during a telephone conversation, he repeatedly
 instructed.claimant to oil.~the switches (TFanscript at pages 4, i .
 5, 6). This account is supported by the foreman who was with
 claimant at the time of that telephone conversation; the fore
 man testified that claimant commented after he hung up that "[the
 assistant supervisor] said to find a bucket and oil the switches,
 out here in the yard. [Claimant] said T don't think I'll find a.
 bucket" (page 22)'. This testimony conclusively proves not only
 that claimant understood what,he was to do, but that he intended . ','
 to deliberately disobey those instructions. It is also important
 to note that although claimant took a very active role in his own
 defense, and extensively questioned the foreman (pages 23-25 and ,,.'
 29-32), he never disputed the foreman's testimony on this specific'
 point - in fact, he did not even question him about it.;~,~-, ,

 The Majority's finding that claimant lacked the capacity to perform the assigned task is mistaken. First,claimant did, on the day of the incident, attempt to defend his failure based on an allegation that he could not find a broom (pages 4, 13). Even if one were to ignore the fact that, as indicated by the assistant supervisor (pages 5-6), a broom is not required to oil switches, the record reflects that claimant did not stress this point in the investigation (instead he alleged he was never issued instructions and did not'have a bucket) and the Organization did not even mention any lack of a broom in the appeal process. If the point is so minor to be ignored in the handling on the property, it certainly should not be determinative in the disposition of the case.

    Claimant's failure to comply with the instructions was not

due to confusion or incapacity. All the excuses he offered were,
 simply afterthoughts to cloud his decision not to comply with
 specific work instructions. The transcript reveals that the
 claimant did not like the work instruction he was given and had
 no intention of following it. There is no confusion in that
 fact. Our dissent is appropriate, therefore.

                          tarrier Memb