PARTIES TO DISPUTI
STATEMENT OF CL6TM
PUBLIC LAW BOARD NUMBER 3530

 Award Number: 112
 Case Number: 112

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

And

NORFOLK AND WESTERN RAILWAY COMPANY


Claimant, W.V.~M~Pherson, P.O. Box 613, Petersburg,'VA 23808 was assessed.a 60 day suspension for alleged conduct unbecoming an employes,.fai,lzng to follow instructions of a supervisor and not being honest ~n :a s.r4temenr made, to a supervisor. Cfaitt',,was. filed in,

 accoroanrg, w6Ehj Railway Lab o~'.Act and-.agreement ptovisions.. Employes~ .request~11 11
 susperis'ibn be remoyed,from his;, record and pay for lost time with,seriiority and vacation rights unimpaired:

 FINDINGS ,.

 Claimant entered ahe Carrier's service.on August 8, 195 L:

 By letter dated July 28, 1988, Claimant was directed to attend a formal

 investigation on charges he engaged in conduct,unbecoming an einployee,

 failure to follow instructions and. dishonesty.

 on September 27, 1988 after a postponement. By letter dated October 14, 1988, Claimant was suspended for 60 days based on evidence adduced at ~he

 investigation.

 The investigation was he:

 The issue to be ~ecided in this dispute is whether Claimant was

 suspended for just cause under the Agreement; and if not, what should the
 remedy be,.-

 On July 21, 1988, Claimant was working a's a laborer at the Carrier's Kinney Yard, Lynchburg, Virginia:,-Roadmaster W. C-.,Agnor was Claimant's supervisor'that day: 'There came 'a time when Assistant Roadmaster K. R.

 Bates asked Claimant to, help him set up ramps on- ramp cars. ,Claimant stated

 that he could not lift anything heavy and that he was on, light. duty., Bates;, asked to speak to Claimant. 'Clafmant, who was within a'few~feet of*Bates,-

 turned and walked away from Bates, indicating orally that Bates was not his boss= Bates late r. checked with the personnel office and learned that there, was no information asto Claimant's being on light"or ~e'striCted duty.

 The position of the Carrier.is that Claimant .was suspended for just .· cause under the Agreement. The Carrier contends that the evidence adduced-"
 at the investigation clearly shows that Claimant.refused to follow Bates' instructions withoutjustification and did so in a -discourteous and dishonest fashion. The Carrier argues that its witnesses' discriptions of the events is question is more reliable and persuasive that Claimant's. Finally, the Carrier maintains that the 60 day actual suspension is justified in light of Claimant'.s prior record of discipline and Claimant's

 disrespect and dishonesty.

 The position of the Organization is that Claimant was suspended without just cause. The Organization admits that Bates spoke to Claimant, but contends that Ciaimant'is not guilty of failing to follow an order. The Organization maintains'that Bates "asked" Claimant to stand still and speak with him, Bates did not "order" Claimant to do so. Therefore, Claimant's
 action was not unbecoming. Furth~r, the Drganizatioii-contends that.,Claimant

 properly refused Bates' orders (if orders they were) because Claimant ,was under Agnor's supervision, not Bates', and was simply try in 'to do his ,job as Agnor ordered. Finally, the Organization mainCAfns,that .the discipline' is too harsh for the alleged offense involved.

 After review of the entire record, the Board finds that the su4ension~

 of Claimant was for just cause under the Agreement.

 The Carrier has sustained its burden of proving that there is substantive credible evidence in the record that Claimant refused Bates' order, was discourteous and was dishonest as t;o his duty status. These actions are clearly unbecoming conduct and cannot be justified. The Carrier has the , authority to determine its work priorities. Ina nonemergency situation, it is for managerial employees to determine who performs what work at what time; and if necessary, they must resolve any conflidting assignments among, themselves. Likewise, in a civilized work environment, a request by a superior regarding performance of 'legitimate duties is the equivalent of an
order. There is no requirement for supervisors to state "this is an order" for it to be treated as such. Similarly,, supervisors must be just in their requests. Finally,, there is no basis for falsification of work status.

 As .to,the discipline, in light of the circumstances of refusal, djscourteoy5nessl`'s,nd~,3ishonesfy~; the discipline was'~Sarramfed and ciAs

 neither arbitrary, capricious n6r, discriminatory,. , ''' ''
 Claim denied.

 Date: ,~ 4?d', 1?-70

 i

 Neut a Member

 Carrier Memb~

 Organization Member