PUBLIC LAW BOARD NO. 4104
 Case--NO. 1
 PARTIES TO DJSS-PUTEBrotherhocd of Maintenance of Way Employees


STATE OF CLAM: -"Claim of-the System Committee of the Brotherhood that:

      1. The dismissal of Section Laborer J`--8£ra~n for alleged,

      violation-of-Rules 665 and 667 of the Burlington

      Northern Safety Rules' was without just and sufficient

      cause and on the basis of unproven-c_harges: =(System -

      File 6-GR GMWA 81-12-4D).


2. The Claimant shall be reinstated to service with
 seniority and all other benefits unimgaireu-and he
 shall be compensated for all-time last, including
 overtime."
 OPINION OF BOARD: On May 13, 1981, Claimant and three other
 Laborers were working near St. Louis, Missouri under-the direction
 of his Forman, Mr..Mitchell, According to Carrier;-Claimant
 and Laborer J.--Strain-failed to follow Foreman Mitchell's
 work orders that day and absented themselves from duty. As
 a result, Claimant and Laborer Strain were directed to appear
 for an investigation.* It was held on May 21, 1981: Thereafter,
 Carrier dismissed the two from service.
      The Organization appealed Carrier's decision.- Carrier

rejected the appeal. It was subsequently advanced to this
 Board for adjudication.
 The Organization argues that Claimant was improperly dismissed. It points out that the four Laborers involved in

 *It is agreed that this claim involves both Claimant and Laborer J. Strain.

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                              Case-no. 1-

the dispute testified they were unaware of Foreman Mitchell's-- -
 alleged instructions to report totha Sled Gang at Grand
 Avenue. Since Claimant did not know where to-go,-he -could not
 be found guilty of disobeying instructions-,-according to-the ----

 In addition, the Organization argue, Claimant did perform track work at Branch Street on the day i -question. Thus,

 it asserts, he did not absent himself from duty, as al=leged-. -
 Finally;-the Organization submits that Foreman Mitchell has displayedan attitude of hostility and animosity towards Claimant and his co-workers. Given these factors, the Org4nization urges that Claimant's discharge was arbitrary and capricious. Therefore,- it asks that the claim be sustained in-its-entirety.
 Carrier maintains that the testimony of Foreman Mitchell and other witnesses substantiates Claimant's failure to follow instructions on the day in question. In Carrier's view, this- - act and Claimant's poor prior record justifies his dismiss=al. Therefore, Carrier asks that the claim be rejected.

      Upon review of the record evidence, we are convinced - -

that the claim must fail. -Carrier's Trial Dfficerchose to
 credit the testimony of Foreman Mitchell over that of Claimant.
 As the parties are well aware, given extraordinary circumstances
 not present here, this Board may not .disturb- a credibility
 finding by a Trial--Officer.----
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                              Case_No. 1--- -

      Given this factor, the record contains substantial

evidence-thatClaimant-did not comply with reasonahle work
 orders on May 13, 1981. As such, his guilt o-f_the charges has been established.
    What is the appropriate penalty for this misconduct?

Under other circumstances, a penalty-less-than di_smissale
 might be warranted.-- However, we note,- Claimant had been
 disciplined--f-or similar misconduct in the--past. He was -
 suspended a total of 20 days for three separate infractions
 similar to those present here. Given this poor record,
 discharge was a reasonable penalty as a result-of the evens
 of May 13, 1981: --Accordingly, and-for-the foregoing reasons,
 the claim must be denied.

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Case No. 1 FINDINGS: The Public Law' Board No. 4104 upon the whole record and all of the evidence, finds and holds: -
 That the Carrier and the Employees-involved-'in-this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act as approved Tune 21;--1934:
 That the Public Law Board No. 4104 has the-jurisdiction over the dispute involved herein; and
 That the Agreement was riot violated.
 AWARD: --

      Claim denied.


P. S anson, Employe Member E. Kal1-inen,
                                        Carrier Member


J

            Mar in F. Sc einman, eutra Mem ex


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