Form 1 NATIONA.h RAILROAD ADJUSTMENT BOARD Award No. 8209
 SECOND DIVISION Docket No. 8049
 2-B&OCT-C M- t 79



Parties to Dispute:. ( (Carmen)
 (
 ( Baltimore & Ohio Chicago Terminal Railroad Company

 Dispute: Claim of Employes:















Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Claimant. James E. Bailey, a Carman was dismissed from service of the Carrier for insubordination effective September 29, 1977, following an investigation held on September 19, 1977. Claimant was adjudged guilty of refusing to perform work assigned by his Supervisor during his tour of duty on September 4, 1977.

 Claimant was directed by his Foreman to drive the R-6 Truck out to the work lead so as to use the R-6's welder to weld a carrier iron. Claimant, according to testimony given by the Foreman and several other Carmen,
 Form 1 Award No. 8209
 Page 2 Docket No. 8049
 2-B&OCT-CM-' 79

 protested the assignment and began yelling at the Foreman. Claimant entered into an argument with the Foreman saying he wasn't going out to the work lead to weld because it wasn't his work. Furthermore, Claimant protested he could not drive the R-6 Truck as instructed because he did not have a driver's license. Claimant then allegedly walked away from the Foreman and headed for his tool box. The Foreman, according to his own testimony, then told the Claimant that if he didn't want to work he should go home. Claimant responded he was going home as he just got sick!

 Upon a close and careful review of the record, the Board determines that Claimant did receive a fair and impartial hearing. The Board finds the evidence substantial and convincing with regard to Claimant's conduct on the date in question, September 4, 1977. Claimant was clearly insubordinate toward his Supervisor when he assumed an argumentative posture and vociferously refused to perform the specific duties of driving the R-6 Truck and welding the carrier iron on a car located on the work lead.

 However, in view of all the surrounding circumstances in the instant case, the Board believes Carrier's action of dismissal may have been excessive and therefore we are inclined to invoke leniency. This action does not in any way negate nor diminish the Board's strong impression that Claimant acted wrongly under the circumstances and that his conduct was unacceptable. In giving Claimant another chance we caution him to protect his assignment by keeping his temper under control and his unjustified complains to himself. If Claimant believes he has been dealt with unfairly or unjustly he may exercise
 his rights to recourse under the grievance procedure provided for in the I
 Controlling Agreement. We cannot impress upon the Claimant enough the obliga
 tion he has simply to do his work as so instructed by his Supervisors.
                                                            I


Claimant is to be reinstated without back pay but with seniority and all other rights unimpaired as the time off between his dismissal and reinstatement
shall serve as his discipline.
                          NATIONAL RAIIROAD ADJUSTMENT BOARD

                          By Order of Second Division


Attest; Executive Secretary
 National Railroad Adjustment Board

 By r~-G_-t!~-'
      o emarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 19th day of December 1979.