(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:
I STATENDIUT OF CLAIM: Claim of the System Committee of the Brotherhood


'insubordination' was capricious, arbitrary, without, just and sufficient
 cause, on the basis of unproven charges and in violation of the Agreement
 (Carrier's File 013.7). r __
vacation and all other rights unimpaired and he be compensated for all
 wage loss suffered.

 OPM16N OF BOARD: Effective August 6, 1975 the Claimant was dismissed
 Pfom Carrier's service as a result of his insubordination toward Section Foreman W. J. Pourcisu 6, 1975. Facts developed at the hearing held on September 3, 1975 evidence that on August 6, 1975, Claimant was working as a Track Laborer in a labor gang under the supervision of Foreman Pourcisu. They were engaged in repairing wide gauge in the mill track. While so engaged, Claimant used abusive language toward his supervisor, Section Foreman Pourcisu, and also threatened "to whip him". The foregoing state of the record is uncontroverted. Claimant conceded tha Pourcisu and had indeed threatened him.

 It is manifestly clear in this industry that a Carrier need not condone insubordination by an employe toward his supervisor. In the case before us when the Claimant used abusive language toward Section Foreman Pourciau and threatened to whip him, he was obviously guilty of insubordination. And, under normal c eleven months service with the Carrier when the insubordination occurred his dismissal from service would not be considered arbitrary, capricious or unreasonable.

 However, this Board finds from the record before us that Section Foreman Pourcisu had initially used abusive language toward the Claimant, which language had provoked Claimant's use of threatening and abusive language toward,Pourcisu. And although such language may be well accepted is a labor gang such as the one involved herein, this in no way diminishes the effect Pourciau's language had on the Claimant. Claimant was obviously upset by his Foreman's language and thus retorted in kind. Eased on the
                    Page 2

                    Docket Number w-21627


foregoing state of events, this Hoard feels co-pelled to conclude that Claimant's dismissal was not warranted. lie certainly should have been disciplined for his insubordination but due to the mitigating circumstances present in the instant case, his dismissal was clearly excessive. His time out of service since August 6, 1975 must be considered a proper suspension for his act of insubordination. Accordingly, Claimant is ordered reinstated with his seniority and other rights unimpaired, but without compensation for wages lost.

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


        That the parties waived oral hearing;


That the Carrier and the Employes 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 Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    A W A R D


Claim sustained to .the extent indicated in the Opinion of the Hoard.

                            NATIONAL RAILROAD ADJUSTMENT HOARD

                            By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 28th day of January 1977.

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