PARTIES ) BROTHERHOOD OF MAINTENANCE OP WAY EMPLOYES
 TO )- -vs -
 DISPUTE )_ BURLINGTON NORTHERN RAILROAD COMPANY

 STATEMENT - - - _._`.-_ _-_-:_~_- -
 OF CLAIM: Claim in behalf of Larry G. Woods for payment
 for all time lost and that the charges be re
 moved from his service record account suspended
 from the Carrier's service for forty-five days.
 FINDINGS: The Board, on consideration of the whole record
 and all the evidence, finds that the parties
 herein are carrier and Employee within the meaning of the Railway
 Labor Act, as amended, that this Board is duly constituted by Agree
 ment dated April 10, 1987, that it has jurisdiction of the parties
 and the subject matter, and that, pursuant to the Agreement dated
 April 10, 1987, oral hearing by the parties, including Claimant, --
 has been duly waived:

 Claimant Trackman Larry G. Woods was suspended from service for forty-five (45) days, December 19, 1987 to February
 22, 1988 after hearing held on January 19, 1988 to ascertain the _
 facts and determine his responsibility, if any,- in connection with
 his being dismissed from service of Burlington Northern Railroad on
 December 18, 1987, by Roadmaster Larry Locke for his alleged insub
 ordination by failure to comply with instructions, and his absence
 from duty by walking off the job at 12:30 hours on December 18, 19.87,
 while assigned to Rail Gang #1 working at Francis, Oklahoma.

 Discipline was based on Rules 564 and 470 of the Safety Rules and General Rules. Rule 564 reads as follows:
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                                    CASE NO. 12


Rule 470 reads as follows:

                "Employees must report for duty at the designated time and place. They must be alert, attentive, and devote themselves exclussively to Company service while on duty. They must not absent themselves from duty, exchange duties with or substitute others in their--place without proper authority."


The transcript of investigation shows the following testimony of the Roadmaster:

    "Q. Did you have conversation with Mr. Woods during the course of that day?

    A. Yes. I, about 12:20, I got a message that, that somebody wanted - to talk to me back-to-back the gang and I's up the front so I said I'11 be back there so Iwent back there but Larry wanted to talk to me and I asked him if he had a problem and he wanted to know how long we was gonna work in the rain and I said well, we're gonna, we gotta §et this track in and I said we get off at four o'clock, - that's when we'll probably quit. --Then I asked him, I said, are you refusing to work in the rain. I said, if you are we'll cut your time and dismiss you from the railroad and he went back to work. And then about a couple minutes later he come up to me and said cut my time, I'm not gonna work in the rain and I said okay. I - said you're dismissed from the railroad and Rail Gang 1 and I have not talked to him since. (Tr., p. S).


    Q. Did any other member of your gang refuse to work after they-came back from lunch?

A. Not to my knowledge.

    Q. Did Mr. Woods, any time during your conversation, refer to you that he wasn't feeling well, had a-flu, or cold or just in general wasn't feeling good?

    A. No, not on this particular day, no. If he had of I would have let him went.


    Q. If he'd a told you he was sick, you would have let him go with unauthorized absenteeism then?

A. Probably would of. Haven't turned nobody down yet." (Tr., p. 6).

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                                      AWARD NO. 12 - (p. 3)

                                      CASE NO. 12


      The transcript of-investigation shows the following testimony

of the Relief-Foreman on Rail Gang $1:

 "Q. Did you have any further conversation with Mr. Woods that morning?
    A. Well, no more than, uh, when it started raining. Uh, several-of em ax me let's get in out the rain, so, uh, I said well, fellas-the track's tore out and we need to get it back in. Mr. Locke and the mechanic are going to town and I -told 'em I said I can't call no raid today, Mr. Locke has to do that. So, we worked in the rain a while and then I said uh, it's gettin to hard, let's go to the bunk car and it would slack up, we come back out and I said ----let's put the track back in. So we all, we did quit all went to the bunk car, put on, I put on some more dry boots myself and they changed clothes some of 'em, I guess. After thirty minutes the ra quit, come on back out and went to work. Then, the shower comeback again so some say they want to quit, I did too, but we had track out and we had to get that track back in there. So, uh, by this time Mr. Locke come and I's up on the front end so, uh, then D. D. Savoie called me on the radio and told me to tell Mr. Locke to come down this other guy wanted to talk to him. So, he got wor out that way to where he got a witness, so I don't know what they made a decision about it then. I was up on the north end, I mean -south end of the track.


      ****


Q. And Mr. Locke told you and other members of the gang that the trac
 had to be put back into service the night of December 18th, is -
 this correct? _
 A. Yes, Sir.

    Q. You don't recall telling me, or Steve McGuffee that you can go in= any time you want to?


A. No, I do not. Well, hold on, I, I if I, if I did say it, I.said -
 you guys can go in if you want to any time you want to, but you
 said well, you gonna fire me if I do that. I said no, I can't fire
 you. Those are the words I said to you.- Go any time you want I
 said, then you said, you said, well, you might fire us, and I said
 I kain't fire you. I said, Mr. Locke have to do that. Those are--
 the words I said, do you remember?" (Tr ., pp. 12-13).

    The transcript of investigation shows the following testimony of

the Claimant: -

    "Q. Were you familiar- with the procedures on the Rail Gangs-as toworking in the rain completing track when they were removed and having to get them back into service before quitting time?

A. No, Sir, I wasn't that was the first time I--worked on a rail gang. -
 I -
    I worked on tie gangs previously, (Tr., p. 14)


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                                AWARD NO. 12 (p. 4)

                                CASE NO. 12


Q. And at that time did you go back to work? -.
 A. Yes, I did. I went back to work for -a-couple of minutes and
 then I-turned around and I told him well, just cut my time I'm gon
 na go in for the day cause I don't feel like working in the rain -
 and I guess I assumed he knew I -was on medication and had a root -
 canal because when I returned to work from the dentist I went over
 to the truck and told him I'd been to the dentist's office. I
 called your office the day previous and told Carol-to relay to
 Mr. Lock that I was going to be a day longer than I thought I was-
 going to be. I was off the 14th, 15th and 16th and I reported-to-
 Mr. Locke the morning of the 17th and I told him I'm sorry it took
 me a day longer than I thought and he says that's okay, you told
 me it's gonna take you a couple of days and I said he started the
 process of a root canal and drilled it out. I said I -got some
 pills I'm taking.

 Q. At approximately 12:20 to 12:30 on December 18th, did you tell-_
 Mr. Locke that you were not feeling well that you were under med
 ication and requested to leave? __ -
 A. No, sir, I didn't.

    Q. Mr. Woods, did you ever give Mr. Locke a reason why you didn't want to work in the rain?

    A. I said I didn't feel like it, I should of went further and been specific I suppose, but I had told the assistant foreman earlier that my tooth was bothering me. "


Q. But you did not make any statements in that regard to Mr. Locke,
    is that correct? -

    A. No, I didn't, I was under the assumptionthat since the head foreman had said you can go in any time you-want to that I could just tell him to cut me time and go in." (Tr., pp. 15-16).


Q. Would you explain the situation?
 A. Well, I had been to the dentist and he had started a root canal.
 He had drilled it out and packed it with some antibiotic material,
 a temporary filling and I'd been running a fever and I -was drenched
 after working half a day in the rain and I just felt that my health
 was more important than the track that I thought could be put in
 tomorrow.

 Q. Why did you not relate this to Roadmaster Locke?
    A. I assumed he understood my circumstances since he had given me permission to leave duty for three days to go to the dentist." Mr., p. 17).


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                                      AWARD NO. 12 (p. 5)

                                      CASE N0. 12


The record is clear that the Roadmaster informed the Claimant that if he refused to work. in the rain "we'll cut your time and dismiss you from the railroad." (Tr., p. 5). Claimant knew from his discussion with his Relief Foreman-that he could be fired if he left his job: " ..but you said well, you gonna fire me if I do that... then you said, you said, well, you might fire us ....". (Tr., pp. 12-13). The record shows substantial probative evidence in support of the Carrier's determination that Claimant violated Rules 564 and 470 of the Safety Rules and General Rules.

 Insubordination is a grave offense and in a proper case may justify dismissal, or, as in the present case, the forty-five (45) working days suspension. Mitigating circumstances, however, are present in the present case. Claimant was suffering from his dental problems, was under medication, and he testified that he was running a fever and that his tooth was bothering him. The Claimant testified that he assumed that the Roadmaster knew of his con dition, although the Claimant also testified that he did not tell the Roadmaster of this. The Roadmaster testified that Claimant would not have been required to work in the rain if the Claimant had informed him of his condition. The Claimant's assumption that the Roadmaster already knew was not a correct assumption. He should have told the Roadmastei of his condition, plainly and clearly. In the special circumstances of this particular case, the suspension of forty-five (45) working days should be mitigated to a suspension of ten (10) working days.

                      A W A R D


            Claim shall be disposed of Per Findings.


        Order: The Carrier shall implement this Award within thirty days of date of Award.


                      JOSEPH LAZAR, CHAIRMAN AND NEUTRAL MEMBER


        Dated: October 30, 1989


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