Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12231
 SECOND DIVISION Docket No. 12006
 92-2-90-2-115
 The Third Division consisted of the regular members and in
 addition Referee Robert 0. Harris when award was rendered.
 (International Brotherhood of Firemen & Oilers
 PARTIES TO DISPUTE:
 (Richmond, Fredericksburg & Potomac Railroad Company

 STATEMENT OF CLAIM:
1. That in violation of the current agreement, Firemen and Oiler Donald A. Coles was unjustly assessed a 25 working day suspension beginning March 2 and concluding on April 3, 1989.

 2. That accordingly the Carrier be ordered to make the aforementioned D.A. Coles whole by removing discipline from his record and compensating the Claimant for all time lost and any other benefit that he may have lost during his suspension that is a condition of employment during the time he was withheld from service.

 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 employes 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.

 Parties to said dispute waived right of appearance at hearing thereon.

 On February 15, 1989, Claimant attended a Hearing at Richmond, Virginia, to defend himself against charges of being away from his work area and playing a guitar while on duty. During the course of the Hearing Claimant was asked whether he wished to make a statement. The following then occurred,: [as originally transcribed in the Carrier's February 15, 1989 Hearing record.)


Form 1 Award No. 12231
 Page 2 Docket No. 12006
 92-2-90-2-115
 [Claimant] -























He know that he is and everybody at this shop know that he is. And I don't appreciate him treating black men this way. He tried to work our tongue out in the shop. We work, we clean the shop, the black men clean the shop, the white men doing nothing, drinking coffee. We gone into investigation about that. I've talked to McGahey about drinking coffee. The white man drink
 Form 1 Award No. 12231
 Page 3 Docket No. 12006
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 coffee, the black men slave. He's known for that. He
 says he hates niggers, period. I can't document that,
 but he say he hates niggers and Jews. He hate those
 type people and its obvious everybody in here can see
 that this man is a bigot. He's perverted, he can sue me
 for slander, but I can prove it. I don't care. I'm
 getting sick and tired of it. (Let the record show that
 during the last sentence made, Mr. Cole's was banging on
 the table). I'm not tolerating it anymore! The black
 man on this railroad, we're not tolerating it anymore.
 Know the investigation is on me; if you look at it, you
 can look at his record. You're not, I know, uh - uh,
 he's stupid, but I feel like the company is dummier.
 Hearing Officer interrupts
 Mr. Coles, I'm going to stop you right there. Mr.
 Coles, you're going to stop. Mr. Coles. We're going
 off.
 (Note: While Mr. Smith was making his statement above
 Mr. Coles was talking at the same time making the
 statement below).
 [Claimant] continues
 I feel like the company is dummier for tolerating this.
 I don't think that they should tolerate this, because
 I'm not going to tolerate it period. I'm not going to
 tolerate it and that's it.
 Hearing Officer interrupts
 You're going to conduct yourself in a gentleman like
 fashion.
 Claimant] continues
 You asked me if I wanted to speak and I'm speaking. The
 only thing I want you to do is just sit back and listen.
 Hearing Officer
 I will tell you when I'll sit back and listen. I'll
 tell you when you'll sit back and listen.
 [Claimant]
 We've gone through this before.
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 92-2-90-2-115






























' Because you're not conducting yourself in a gentlemanly
Form 1 Award No. 12231
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On February 17, 1989, Claimant was charged with insubordination and uncivil conduct during and immediately following the February 15, 1989 Investigation. The conduct following the Investigation in question was Claimant's statement to Mr. Ashburn that he would pay for this. The statement did not appear to the witnesses to be a physical threat.
 Form 1 Award No. 12231

 Page 6 Docket No. 12006
 92-2-90-2-115

 In the companion case, the Board reduced the penalty assessed because it was found that the Carrier had failed to prove that Claimant had actually played his guitar while at work, although he had brought the guitar to work against a Carrier directive.

 The Board finds that Claimant was extremely upset because of what he thought were false accusations which he blamed upon racial prejudice. He did not make any disturbance at the March 7, 1989 Hearing and only spoke when the Hearing Officer gave him that opportunity. His alleged threat was nothing more than the blowing off of steam and merely stated in another form his belief that the individual involved was prejudiced against blacks. Claimant was neither insubordinate, nor did he engage in uncivil conduct, if that meant that he was disorderly. If not uncivil conduct, there is no basis for disciplinary action. The Claim will be sustained and Claimant will be paid for all time lost.




                            By Order of Second Division


Attest: 000,- oe VW

        Nancy J e r - Executive Secretary


Dated at Chicago, Illinois, this 8th day of January 1992.