Claimant was employed by the Carrier as an Assistant Foreman. On October 4, 1984, his gang was divided into two parts: with the Foreman supervising part of the gang at one location, and Claimant assigned to accompany and supervise part of the gang, sent to another location, to check some switches. Claimant and his gang were observed by the Division Engineer at approximately 7:20 a.m., at a location some distance from than that to which they were sent, with the Claimant and Driver in the parked truck, and members of the gang ordering coffee and food from a nearby food truck. Claimant was removed from service by the Division Engineer, and investigation was held, and Claimant was discharged from the service.

The record reveals that Claimant previously had been instructed that he was not to permit employees to take "coffee breaks" immediately after starting work, and that, in fact, Claimant had received prior discipline for violating those instructions. It is undisputed that Claimant's gang was taking a "coffee break" at the time they were observed by the Division Engineer, in contravention of Carrier's instructions.

The uncontested facts show that Claimant's gang was engaged in conduct which violated Carriers instructions, in the presence of the Claimant, and that Claimant knew the rules and that he was in charge of the gang. Those facts are sufficient to establish a prima facie case against the Claimant, and the burden then is upon him to mitigate his responsibility for the violation of instructions.

Claimant raised several arguments in his own defense; however, the Board is not persuaded. He testified first, that the Track Supervisor instructed him to take the gang for coffee; but subsequently changed his testimony to assert that it had been the Foreman who instructed him to do so. When the Foreman disputed that testimony, Claimant changed his story again; asserting that he was unaware that the gang left the truck when he stopped. Later still, he admitted he was aware of their leaving, but that he did not authorize them to do so. The claimant's testimony is not credible, and, even if viewed in the best possible light, reveals an individual unable or unwilling to control a gang.

. J hnson, Chairman