(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:


STATEMENT OF CIA324: On behalf of, Signal Foreman R. J. Tarts, who was
 suspended from service October 8, 1973 pending
 hearing and subsequently dismissed from service effective November 29,
 1973, for restoration to service with payment for all time lost including
 any overtime employee in his gang junior to him received during his
 suspension.

 OPINION OF BOARD: Claimant R. J, Tarts was taken out of service by
 the Supervisor, Communications and Signals, on
 October 8, 1973. By letter dated October 9, 1973 Claimant was served
 with a Notice of Hearing reading. as follows:





Following three postponements, two at the behest of Claimant and one upon the request of the General. Chairman, the hearing was held on November 16, 1973, Thereafter, by letter dated November 29, 1973, Claimant was informed as follows:


            "PENN CENTRAL TRANSPORTATION COMPANY


        Boston Massachusetts

        November 29, 1973

        REGISTERED RETURN

        RECEIPT REQUESTED


        Mr. Robert J. Tarte

        126 Concord Street

        Ashland

        Massachusetts


        Dear Sir:


        This is to advise you that as a result of a Hearing which was concluded on Friday, November 23, 1973 in connection with charges levied against you as outlined in letter of notification dated October 9, 1973, and based on the facts established at the Hearing, you have been found guilty of the charges levied against you.


        Accordingly, you will be dismissed from the service of this Company effective November 29, 1973.


        Kindly acknowledge receipt of this letter on copy attached and return to this office.


                          Very truly yours,


                            E. C. CROSS Is/

                          Division Superintendent"


Claimant appealed this decision to Carrier's Chief Signal Engineer and, following an appeals hearing, that official denied the appeal but overruled the initial hearing deci
        "Regarding the appeal hearing which began in Worcester, Mass. on December 12, 1973, and at your request, was postponed until December 14, 1973. Reference to the hearing held in Boston charging you with: (1) insubordination on Oct. 1, 1973 (2) Insubordination on Get. 8, 1973 and (3) being disrespectful and use of obscene language on Oct. 8, 1973 at Jemesville, Mass,


        I have reviewed the transcript of the referred to hearing as well as the facts brought forth in the appeal hearing and I could find no violation of Rule 36 wherein you were not given a fair and impartial hearing.

                  Award Number 20993 Page 3

                  Docket Number SO-20822


        "The charge of insubordination on Oct. 1, 1973 is not substantiated in the hearing and is thereby overruled.


        The charge of being disrespectful and using obscene language is not substantiated and is also overruled.


        The charge of insubordination on Oct. 8, 1973 is substantiated and not refuted and is thereby upheld.


        In view of your past record which reads as follows and is taken into consideration at this time, and the seriousness of the charge substantiated, I find the discipline of dismissal was warranted:


                  1. Oct. 25, 1943 Violation: Rule 725 Discipline: Dismissed from service: Re-employed Feb. 11, 1944.

                  2. Dec. 1, 1945 Violation: Off duty without permission. Discipline: Two days record suspension.

                    3. Jan. 28, 1946 Violation: Switch Run-through at interlocking: Discipline: Six days record suspension. Served two days from item 2.


                    4. Nov. 28, 1946 Violation: Insubordination Discipline: Verbal reprimand


                    5. April 30, 1947 Violation: Insubordination Discipline: Three days actual suspension.

                    6. Feb. 16, 1951 Violation: Not properly taking care of work on section 3 and interlocking 23 on Jan. 29, 1951. Discipline: Five days record suspension.

                    7. June 11, 1969 Violation: Violation of Rule 3000 and Rule B and T of the Rules for Conducting Transportation. Discipline: 30 days actual suspension.


                  8. Mar. 17, 1969 Violation: Violation of Rule 3024 Discipline: Five days record suspension.

                  9. Oct. 9, 1972 Violation: Insubordination Discipline: 10 days actual suspension.


                  Your appeal is therefore denied. "


Claimant appealed this decision to Carrier's Director-Labor Relations who, following an appeal hearing on January 14, 1974 notified Claimant as follows:
 Award Number 20993
 Docket Number SG-20822

 MU CERrRAL TRANSPORTATION COMPANY

 Mr. Robert J. Tarte
 126 Concord Street
 Ashland, Mass. 01721

 Dear Sir:

 January 29, 1974

 Please refer to your letter of December 20, 1973 concerning your appeal of discipline of dismissal assessed you on November 29, 1973.

 In accordance with your request, an appeal hearing was held in this office on January 14, 1974.

 We have carefully reviewed the records in this case as well as your statements at the appeal hearing. However, we find no basis in fact or in the record for changing the discipline involved in the case. Accordingly, your appeal for restoration to service and payment for time lost is denied in its entirety.

 Page 4

 Very truly yours,

 N. P. PATTERSON /s/

 N. P. Patterson
 Director-Labor Relations

 cc: R. J. Moran, General Chairman, HRS"

 Thereafter, Petitioner, on behalf of Claimant, processed the claim to our Hoard for review and determination.

 Claimant R. J. Tarte was at the time the instant claim arose a Signal Foremen employed by Carrier on the former Boston and Albany Railroad. Before and after the incident of October 8, 1973 Claimant has served as a General Chairman of the Petitioner Organization bat was out of office on that date. The record developed at the initial hearing sets forth the incident out of which the dismissal arose and rather than paraphrase we shall set forth the testimony of the direct participants therein. It is noted that the sole remaining charge against Claimant is insubordination for refusing a direct order from the Supervisor C&B on October 8, 1973, and, accordingly, our review of the transcript will be limited to that line of inquiry. The Supervisor C&S made a statement relative to the incident of October 8, 1973 as follows:
                  Award Number 20993 page 5

                  Docket Number SG-20822


        "On October 8, 1973, Mr. Lombardi and myself went to James

        ville to look over the progress at the location. I noted

        the signal cable, the new signal cable, hanging low to the

        ground, installed low to the ground. I questioned Mr.

        Lombardi why the cable was installed so. He stated that

        he had instructed Mr. Tarte to install said cable under the

        second arm in lien of the bottom arm. At that time Mr. Tarts

        approached us. I greeted Mr. Tarts with "Hello Hob." His

        first statement to me or to us, excuse me, Mr. Lombardi and

        myself, was what are you critizing now. At that time I

        asked Mr. Tarts why he had installed the cable under the

        bottom arm when he was instructed by Mr. Lombardi to install

        the cable under the second arm. At that time Mr. Tarts ex

        plained that this is the way that they install cable on this

        railroad and he could show me numerous occasions where its

        installed likewise. I explained to Mr. Tarts that it was

        irrelevant, that he was instructed to place the cable as

        directed by Mr. Lombardi. He then went on and stated that

        he knew more about signalling then him, him referring to

        Mr. Lombardi, and he had so many years on the railroad.

        that time I explained to Mr. Tarts that what was transpiring

        constructive critic time Mr. Tarts stated

        me if all I could do is come around ere and critize this

        job, en n come around ere with this d damn shit.

        e urn me an s o w away, As he walked

        away call or Mr. a return to me. I called for

        him to return three s. On the third time he turned and

        told me c go o Philadelphia with the rest of those

        damn nuts an con o walk away from me, At that time I

        as Mr. w in the an that he wanted to take Mr.

        Tarts's es as I was taking Mr. Tarte out of

        service, wen to the location where Mr. Tarts was

        wow with the gang, told Mr. Tarts to come with me and

        make arrangements to get him back to his automobile, I was

        taking him out of service. At the location of his vehicle

        just before departing, he made a statement that I could whistle

        when I wanted him back and that concluded the transaction be

        tween Mr. Tarte and myself on October 8 at Jamesville."(Emphasis added.)


Claimant declined to make a statement at the hearing but, under crossexamination, he testified a
        . Mr. Tarte, you were the Signal Foreman on duty at James

        ville on October 8, 19737

        A. Yes.

            Award Number 20993 Page 6

            Docket Number SG-20822


    "Q. On the morning of October 8, 1973, did Mr. Bryce appear on the site at Jamesville?

A. With Mr. Icmbardi, yes.

    Q,. And did Mr. Bryce have a conversation with you relative to the work which had been performed?

    A. Not at the moment no. He and Mr. Lombardi spent considerable time pointing and gesturing at the c I had previously installed.


e. Did Mr. Brycehave a conversation with you while he was
 on t e site at Jamesville?
 A. Subsequently later, yes.
            Q. During the course of this conversation did You walk away a?

    AI most certainly did,

, ~-~c
Q. Did you hear Mr. Bryce call to you to return to =
    A. Not in the sense as one would normally call, no. In a very demeaning and derogatory mamer as one would call a dog to heel to his master I was called to return and subject myself to further harassment by Mr Brvce


    Q. After having been called three times did You tu*a s a make comment to Mr. Bryce?

    A. I made comment to Mr. Bryce on a number of times i_ that particular time period.


    Q. On the occasion of his third call to you it has been testified that you turned to him and made remarks such as why don't you go back to Philadelphia with the rest of the nuts.

    A. To the best of my recollection that is not correct. My reference was that because of his attitude and actions that he was merely trying to provoke me and I suggested merely to return to Philadelphia where they are expertise in this manner.


                                  Q. You heard Mr. Bruce call You on three occasions to return to him. Is this correct?

A. I believe it was more than three s Bat you see at
 the moment I was not aware that I was being set up for a
 fall and I could be exact as to the number of instances
 that I was called or asked questions. I had no prior
 knowledge that this sort of thing was going to take place
 as Mr. Bryce and Mr. Lombardi had patched this over ahead
 of time.
            Award Number 20993 Page 7

            Docket Number SG-20822


"Q. Did you return to idr. Bryce when he called Mr Tarte?
 A. W -T did not. I felt and came to the conclusion at this
 incident at I was being set up for a fall that was
 deliberately being projected and that I better have some
 one who could witness these dastardly activities by these
 two personages and I moved a distance away from them so
 I could be close to my gang who was working there so that
 if they continued on with the harassment I too would have
 a witness to the allegations and statements.

 Q. Do you recognize Mr. Bryce as an officer of this company?
 A. I believe he is.

    Q. And as such do you recognize him as having authority and jurisdiction over you?

A. I believe he does.

    Q. In view of the fact that you failed to comply with Mr. Bryce's calls for you to return to him on October 8 do you feel that you were disregarding his instructions?

    A. Under the circumstances of the call I do not. The fact that one is a person's immediate supervisor does not give that supervisor the right to demean, harass and make suggestive attitudes that would be demeaning to the employee for the sole purpose of harassment and I don't believe that I have to be responsible to any carrier official that is as abusive and corrupt as these two individuals were at this time, and the carrier's concurrence with their attitudes is evident in the I have filed a complaint against these two individuals and the carrier has not even had the decency to acknowledge the complaint as yet.


    Q. But you do agree that you did fail to comply with the orders of Mr. Bryce to return to him. IS this correct?

    A. In the manner that I felt that I would not have to respond to such a call that I was not a puppy dog to be heeled by his master, As a matter of fact I was so shocked by the experience and realized that I was being belittled and demeaned that when I was leaving I said to Mr. Bryce 'Don't forget to whistle when you want me back' in keeping with the tenor of the conversation, that he was calling me as one would call a dog."

                  Award Humber 20993 page 8

                  Docket Number SG-20822


The jurisdiction of this Hoard in discipline cases is well understood to be a threefold inquiry as to 1) Whether Claimant was afforded a fair and impartial investigation 2) Whether substantial record evidence supports the charge and 3) Whether the discipline imposed is, in all of the facts and circumstances of the case, so disproportionate to the offense as to be arbitrary, unreasonable or capricious. We have carefully reviewed the instant r
Petitioner contends at the outset that Claimant should be reinstated with full compensation beca of Rule 36 relative to a fair and impartial hearing and handling of the claim. In this connection the allegations include improper notice, failure to grant prompt hearing, prejudgment, improper official making decision, failure to provide transcripts of hearings, harassment of Claimant and his wife and an overall allegation that the entire disciplinary proceedings were a "Kan on each of these charges and are satisfied that they are not supported by the record. The notice was sufficiently precise and timely, postponements were all at the request of Claimant or his representatives, there is no requirement that a specific official render the disciplinary decision, there is no probative evidence that Claimant was deprived of a transcript, and the recurring allegations of harassment, intimidation and coercion of Claimant by Carrier officials at all levels has absolutely no foundation in the evidence before u
It is also asserted that the suspension of Claimant from October 8, 1973 until his dismissal fol November 29,1973, was violative of his Agreement rights. Both Petitioner and Carrier have cited substantial authority for their countervailing positions on this issue, all of which we have reviewed. The express language of Rule 36 provides for suspension "in a proper case". Each of the awards relied upon by Petitioner dealt with misconduct of a relatively minor nature. Here we have a charge of gross insubordination and in all of the circumstances suspension clearly was not a violation of Rule 36 and consistent with a long line of awards interpreting identical rules on various properties,

 There is absolutely no doubt that the charge of insubordination is supported by the record, including Claimant's version of the incident of October 8, 1973. Rarely have we encountered so clear and flagrant a case of outright refusal to obey a reasonable order of a superior. Nor do we find circumstances to justify or mitigate the impact of this refusal. Claimant's extravagant c supervisors to "demean, harass and belittle" him and otherwise engage in "dastardly activities" in order to "provoke" him are without any support whatever in the record before us.

 In the face of the proven insubordination discipline is no doubt warranted. The question remains as to the quantum of discipline imposed.
                  Award Number 20993 Page 9

                  Docket Number SO-20822


Petitioner urges that in all of the circumstances dismissal is so shockingly severe as to warran nature of the offense, and Claimant's overall disciplinary record, including several previous citati that dismissal is arbitrary, unreasonable or capricious. The claim must be and is denied.

        FIRDINOS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employer involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: 99&0

        Executive Secretary


Dated at Chicago, Illinois, this 12th defy of March 1976.