PARTIES Brotherhood of Maintenance of Way Employes
 TO and
 DISPUTJS Southern Pacific Transportation Company (Western
 Lines)
 STATEMENT 1. That the Carrier violated the provisions of
 OF CLAIM the Agreement when on December 28, 1982, at
 approximately 9:30 A.M. it removed Track
 Laborer, Francisco Tahudo Moreno, from service
 pending a formal hearing which was held on
 January 13, 1983, for an alleged violation of
 Carrier Rule 801, and thereafter, advised Mr.
 Moreno by letter dated, February 3, 1983, that
 he was in violation of said rule, and
 therefore was suspended for forty-one (41.)
 calendar days effective December 28, 1982
 through February 7, 1983.
 2. That Mr. Francisco Moreno be compensated for
 all time lost as a result of their improper
 suspension and that the charges relative to
 this issue be expunged from his record.

    FINDINGS


    Upon reviewing the record, as submitted, I find that the Parties herein are Carrier and Employes within the meaning of the Railway Labor Act, as amended, and that this Special Board of Adjustment is duly constituted and has jurisdiction of the Parties and the subject matter, with this arbitrator being the sole signatory.


    The Grievant, Francisco Moreno, was a Track Laborer who worked on Extra Gang 36 out of the Berkeley, California Headquarters.

SBA No. 947 Award No. 2
 Case No. 2
 On December 23, 1982, his gang, along with two others, were
 working on Track number 50 at the West Oakland yard. At around
 11:15 A.M., Mr. Moreno was told to remove a tie from under the .
 rail. When he attempted to remove the tie from under the rail,
 his tongs slipped. His momentum carried him backwards and he
 fell over scrap ties located immediately behind him He
 continued working until his 11:30 A.M. lunch break. After lunch
 he started to work again, but realized he had injured his back
 in the fall earlier. After reporting to his foreman, Mr. Duren,
 he was taken to see the doctor.

 Mr. Moreno's foreman was Sacramento Duran. Mr. Duran, along with two other foremen, Peter Alexander Romero and Jose Luis Ramos, testified that Mr. Moreno was told to remove the scrap ties from behind him before he attempted to remove the tie from under the rail. In addition, there was testimony to the effect that Mr. Moreno upon hearing the direction, replied he could remove the tie from under the rail without moving the scrap ties. Further testimony indicated there was no response from any of the foremen to Mr. Moreno's statement. At the hearing Mr. Moreno stated he had not been told by anyone to remove the scrap ties. He also claimed that he was not familiar with the Rule he allegedly violated. However, at the hearing, Mr. Duran indicated the General Rules and Regulations of the Transportaion Department are posted in his department in both English and Spanish.

                          2

                                  SBA No. 947 Award No. 2

Case No. 2
 Mr. Moreno was employed by the Carrier on October 20, 1969. His
 employment record lists five (5) sustained injuries over his
 thirteen (13) years of employment. Two of those were back
 injuries, while one involved an eye injury. The other two
 appear from the record to have been minor. Aside from the
 current disciplinary action, Mr. Moreno's record is clear.
 There is no record of any type of disciplinary action ever taken
 against Mr. Moreno. Certainly insubordination is a serious
 charge, especially when the safety of employes is endangered as
 a result of the failure to obey an order. In this case, Mr.
 Moreno was issued an order. He responded to the effect, he did
 not believe it was necessary to remove the scrap ties to
 accomplish his primary task. None of the three foremen at that
 point felt it necessary to reaffirm the directive to Mr. Moreno.
 If Mr. Moreno's employment record had indicated a rebellious or
 arrogant attitude on other occasions, I would believe he
 intentionally disregarded a supervisor's order. In the present
 situation, however, I believe once he stated it wasn't necessary
 to remove the scrap ties, he felt it was okay to proceed with
 the removal of the tie from under the rail. At least, the
 foreman must take some blame for not reinfo;cing his original
 command. More importantly, Mr. Moreno is an employee with
 thirteen (13) years of experience. As discussed previously he
 has an unblemished disciplinary record. Although it must be
 impressed on Mr. Moreno that he is to obey the orders of.his
 Supervisor, unless the orders would result in some personal risk
 to himself or others, a forty-one (41) calendar day suspension

                          3

                                      SBA No. 947 Award No. 2


                                                Case No. 2

      is excessive in light of Mr. Moreno's record, especially when there is no evidence of any previous warnings regarding Rule 801.


      AWARD


          The Claim is sustained in part; the forty-one (41) calendar day suspension is reduced to a five (5) working day suspension with seniority unimpaired.


      ORDER


          The Carrier shall comply with the above Award within thirty (30) days from the date submitted.


                                _ .v


                                  Caro mpeni, Neutral


Submitted=

 June 11, 1984
 Denver, Colorado

 4