Martin H, Malin, Chairman & Neutral Member

P. ls. Geller, Employee Member

M. J, Kovacs. Carrier Member

Hearing Date: April 16, 2003

STATEME NT OF CLAIM;

7 . The discipline [twenty-nine (29) day overhead suspension, one (1) day actual

suspension and disqualification as foreman and assistant foreman for one (1) yeari

assessed Assistant Foreman Donald Spooner for his alleged failure to comply with

instructions on April 1 1, 2002 at Medley, Indiana was without,just and sufficient

cause and based on unproven charges (Carrier's File E1365-785y

2. Assistant Foreman Donald Spooner shall navy be exonerated of the charges, here

the discipline removed frurn his record and be compensated for all wags, credits

and benefits denied, and continuing anti? this matter is property resolved.

Public Law Board No. 6166, upon the whole record and all the evidence, finds and holds that Employee and Carrier arc: employee and carrier within the meaning of the Railway Labor Ace, as amended; and, that the Board has jurisdiction over the dispute herein; and, the( the parties to the dispute were, given due notice of the hearing therean and did participate therein.

On April 12, 2002, Carrier notified Claimant to appear for an investigation on April 15 2002, concerning, his alleged insubordination and failure to comply with direct orders at 1640 hours on April 11, 202, at 5edley. Indiana. The hearing was held as scheduled. On May 1, 2002, Carrier notified Claimant that he had been found guilty of failure to comply with instructions and assessed a twenty-nine day overhead suspension, one day actual suspension and disqualification as foreman and assistant foreman for one (1) year-.
The critical issue in this case is whether Carrier proved the charge of failure to comply with instructions by substantial evidence. The Foreman testified that coat the data in question ha instructed Claimant to stay witch and monitor the rail litters and that Claimant refused to do so, Consequently, the Forman told Claimant to work with the quality cart and Claimant refused to do say, cursed at the Foreman and walked away. Claimant testified that he did stay with and did monitor the rail lifters, Claimant further testified that he was angry and did not initially comply with the instruction to wont/ with the quality cart and that it was likely that h e did curse at the Foreman. Claimant further testified that h c was told by an Assistant Foreman to man a switch.

With respect to the iaastrtoction to stay with grad monitor the rail lifters, the record presents a question of the relative credibility of Claimant's testimony and the Foreman's, As an appellate txady, we do not observe the witnesses and are in a poor position to assess creclibiity. Therefore, we generally defer to credibility determinations made on the property. We see no reason to withhold such deference in the instant case. With respect to the instruction to work with the duality part. Claimant admitted that lie did net comply. Accordingly, we conclude that Carrier proved the charge of failure to comply with instructions by substantial evidence.

We fmrtlter find that the penalty assessed was not. arbitrary, capricious ox excessive. Accordingly, the: claim must he denied.

Claim denied.

Martin H. Malin, Chairman

Carrier Member

1?. R. Genet
Employee Member

bated at Chicago, Illinois, October 9, 20133