ins any other case.

After thoroughly reviewing and considering the transcript and tile parties' presentations, the Board finds that the claim should he diseased. of as follows:

Claimant G. A. Clare entered service of the Carrier an March I_ 1999, and was working as a Foreman of a three man extra gang at Elkhart Yard on November 25, 20113, During his job briefing that morning, Claimant was instructed by the Assistant Division Engineer to winterize switches in Elkhart Yard with the other two members of his crew. They v.=ere all to "work until dark" which his supervisors specified to be S:dt9 p.m. As the normal quitting bane for dais crew (i.e., the tirxre they were to he at their lodging facility) was S p.m., this meant they -were being required to work overtime,

rat approximately x:45 p.m,, Claimant called his Track Supervisor and notified him that the crew had quit far the day. When reminded that they wore instructed to work anti! 5:34) p.m., Claimant advised his supervisor that he had let the two men go early because they diet not want to work stay longer. Claimant was instructed to recall the men and have them work until dark. as instructed, but lie was only able to contact one of the two men, and that was at 5:15 p.m. Although Claimant remained an duty until 5:30 p.m., neither of the men on his crew returned to the yard to perform further 'service on the date at issue.

By letter dated November 25, 2003, Cnaimantwas instructed to attend are investigation scheduled for December 22, 2003, in connection with a charge of insubordination for failing to follow instructions to work until 5:30 p.m. winterizing switches on November 25, 2003. The investigation was held as scheduled, during which the Claimant testified that ho had let the men quit pris3r to 5:30 p.m. because he felt intimidated by one of the men on the gang.

Subsequently. by letter dated January 9, 21304, Claimant was advised that ha had been found guilty of the charge, and he ways assessed a 35 day suspension. Also, his Foreman's seniority was forfeited, and he could not attempt to regain it for a period of one year.

One procedural matter was raised during the appeal process. The General Chairman took exception to the fact that Claimant vas held cut of service prior to the investigation. noting that lie was of no danger to himself or any ether employee. The Board notes that there are legitimate reasons for removing employees from service pending investigation, and that a charge of insubordination is generally considered to bean acceptable reason for doing so, T`hercfore, it was not improper for the Carrier to withhold Claimant from service pending the investigation.

Notwithstanding the foregoing, the charge of insubordination was nest proven in this case: rather, it is a ease of failing to follow instructions. The distinction is a matter of willfulness on the part of the employee. The term 'insubordinatian` usaaa8ly refers to an employee's direct refusal to submit io the authority of a duly authorized supervisor, and it is usually addressed by dish-Missal from service. ln this case, however, it is clear fratm the record that this is a case of a relatively young foreman being coerced by one or two members of his crew, each with almost 30 years of seniority, into failing to follow instructions to work overtime. Claimant's failure to follow instructions was, therefore, not a willful and deliberate refusal to obey a direct order. Indeed, the Cattier apparently realized that than was not a clear case of insubordination because it did not dismiss Claimant, instead issuing a substantial penalty in the form of a 35 day suspearsion.

or, the outcome would certaml instructions would have been shifted from the Claimant to the crew members.

Further, the fact that he stayed at the yard until 5:30 does not mitigate his failure as foreman of the crew to ensure that h%s crew complied with the instructions he was given during the job briefing that morning. It does, however, mitigate against the charge that he v,=as insubordinate.

The claim will be denied in park and sustained. in part. Under the circumstances, the Board finds that the imposition of a 35 day suspension was not excessive. Also, the denial of Claimant's seniority rights to work as a foreman eras appropriate as a temporary measure, but not a permanent one. His failure appears to be the result of youth and inexperience, and his suspension and temporary loss of foreman's rights should save as progressive discipline.

Therefore, Claimant's foreman seniority rights shah be reinstated effective December t, 2004. As of that date, he shall be allowed to exercise his foreman or assistant foreman seniority through the bidding process or placement on a vacant position, but he gray not displace a junior employee as the means for this initial exercise of seniority. AftLr he has suoeussful?y bid to a foreman or assistant foreman position, he may freely exorcise his seniority rights under the terms of the collective bargaining agreement in affect between the parties.

Mark D. Seibert

Chairman and Neutral Member

Carrier Member