PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) -- .- _ -
 DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
 STATEMENT
 OF CLAIM: Claim in behalf of Trackman D. R. Freeman that
 he-be returned to service with all rights intact,
 paid for all time lost and that the charge be
 removed from his service record as a result of
 his dismissal April- 8, 1988.
 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.

 Under date of April 8, 1988, Claimant Trackman D. R. Freeman received letter from the Carrier stating:

                  "As the result of your violation of Rules 532

          and 532(B) of the Burlington Northern Railroad Rules of

          the Maintendnce of Way dated April 77, 3.986,_in connection

          with your- failure to report and protect-your trackman' ,s

          vacancy from April 4, 1988 on Track Gang 131, Seymour,

          MO as you were instructed, you are hereby dismissed from -

          the service of the Burlington Northern Railroad Company."


          Rule 532 reads as follows:


                  "Report for duty: Employees must report for

                  duty at the designated time and place. They

                  must be alert, attentive and devote themselves

                  exclusively to the company's service while on

                  duty. They must not absent themselves from duty,

                  exchange duties with or substitute others in

                  their place without proper authority. PRT:S11)VqT

                  VICE


                                            UT

                                                    ~;o~or1


                  ~_. _ _ _ ._ ___,~.e .- ~~.=-.:.: : N OV 161989

                                AWARD NO. 16 (p. 2)

                                CASE NO. 16


          Rule 532(B) reads as follows:


                  "Instructions: Employees must comply -with instructions from the proper authority."


On March 25, 1988, the Carrier issued to Claimant a letter of suspension stating:

          "Suspended from service March 23, 1988 until March 31, 1988 (seven eight hour working shifts), for violation of Rules 532 and 532 (B) of the Burlington Northern Railroad Rules of the Maintenance of Way dated April 27, 1986, as the result of your failure on Marsh 21 and 22, 1988 to protect the trackman's vacancy you were working on Track Gang 131 headquartered at Seymour, MO as you were instructed.


          Since Friday, April 1, 1988 is a holiday, you are specifically instructed to protect this trackman's vacancy at Seymore, MO on Monday, April 4, 1988."


The transcript of investigation shows the following testimony of Roadmaster:

 " I sent Mr. D. R. Freeman a certified letter March 4, 1988,
    recalling him for work from Gang 131 at Seymour, Missouri. He

    was to take a re-entry physical and report .to work within ten

    days. Mr. Freeman passed his physical March 11, 1988. He came

    to my office on this date to discuss with me about letting him

    return to work one day a month for the next six months in order

    to become vested for ten years' railroad retirement. He said he

    would also drop all time claims against the company. I refused -

    this deal, but suggested he talk to my immediate supervisor...


    Mr. Freeman reported to work March 14, 1988, as instructed. Fri-_ day morning, March 18, I ask him if he would be reporting to work the following Monday. He stated he dould not as he was protecting another job working for the Missouri State Highway Department. I informed him at that time that this a rule violation and that he report to work to protect his job with the railroad.


    Mr. Freeman failed to report to work Monday, March 21 and Tuesday, March 22, 1988. On March 23 I called him at home and asked = if he would be returning to work. He said he would be back for - one day the next month.


    On March 25, by certified letter, I suspended him from work for seven working days for violation of Rules 532 and 532(B). He was told to report for work April 4, 1988.


    Records will show that Mr. Freeman was suspended five days for the same rules violation November 21, 1986.


                                                43(4a -( 6

AWARD NO. 16 (p. 3)
 CASE NO. 16

 April 4 and 5, 1988, Mr. Freeman did not report for work as instructed. On April 6, 1988, I attempted to contact him at home and at his place of employment with the highway department. I was unable to reach him.

    More investigation revealed that Mr. Freeman was working for the State Highway Department during the week of April 4, 1988." (Tr., pp. 4-5).


The transcript of investigation, Exhibit No. 22, is a letter from the Missouri Highway and Transportation Commission, dated May 12, 1988, stating:

    "This is to advise that employee Dennis Freeman worked April 4, 5, 6, 7 (h day), and 8th. He took # day of sick leave on April 7, 1988."


The transcript of of Claimant:

 investigation shows the following testimony

 Exhibit 22 that you examined earlier, I believe you said there was an error on this exhibit. Would you tell us that error again? Yes. On April 6 and 7 those days I went to see the company doctor, Dr. Lowe.

 Are the rest of the days correct? __
 I suppose so I--that's the only two that I remember going to the
 doctor.

 Other than those errors then the rest of this document is correct?
 Yes ". (Tr., p. 21).

 And did the foreman always grant your request to be off to protect another job? I never asked to be off-to protect another job in the past.

 But this time you did? I never gave no -reason, I said it was personal--need to take offpersonal.

 But that was the reason to protect another job?
 I have to make a living, yes." (Tr., pp. 21-22).
 AWARD NO. 16 (p. 4)
 CASE NO. 16

 The evidence of record shows that Claimant was specifically instructed to report for work on April 4, 1988. Claimant did not report as instructed. Instead, he worked that day and on the 5th, 6th, 7th, and 8th for the Missouri State Highway Department. Claimant had previously requested that he be allowed to work one day a month for the Carrier so that he might become qualified for railroad retirement benefits, but this request was denied by the Roadmaster.

 The record shows substantial probative evidence in support of the Carrier's determination that Claimant violated Rules 532 and 532(B) of the Burlington Northern Railroad Rules of the Maintenance of Way dated April 27, 1986.

 The Board notes that Claimant obtained from Company doctor on April 6, 1988, a determination that the Claimant's off-duty injury-of his knee,. suffered on January 29, 1988, rendered him not medicallysatisfactory for employment. This determination was made on April 6; Claimant's non-compliance with instructions to report occurred on April 4. The testimony of Claimant is that he did not try to contact his foreman or his Roadmaster to attempt to lay off on April 4. (Tr., p.19). In the circumstances of this case, taking into account the fact that Claimant worked for the State Highway Department the week of April 4, and taking into account Claimant's past record-, the discipline wasnot excessive.

 A W A R
The Carrier is not in violation of the Agreement.

 2. The claim is denied.

 JOSEPH LAZAR, CHAIRMAN AND NEUTRAL MEMBER

 DATED: November 8, 1989