THIRD DIVISION Docket Number MW-21689


                    Robert W. Smedley, Referee


PARTIES TO DISPUTE: (Brotherhood of Maintenance of Way Employes

                (Louisville and Nashville Railroad Company


STATEYXNT OF CLAID4: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Track Repairman Sam Patmon was without just and sufficient cause and on the basis of unproven and disproven charges (System File D-105855; E-306-6/1-23 (33)).

 (2) The claimant's record shall be cleared of the charge; he shall be reinstated to service and paid for any time lost - all in conformance with the provisions of the first paragraph of Agreement Rule 27(f)."

 OPINION OF BOARD: On charge of insubordination, Claimant, a track repairman,
 was dismissed from the service after hearing held January
 23, 1975. The events were on Saturday, January 11, 1975, around 1:30 a.m.
 The crew had worked all day Friday and on through past mid-night, some 17 hours,
 in bad weather, on a derailment.

 As viewed most favorably for the carrier, the facts are as follows: There was a serious quarrel where Claimant was told to "pick up that damn hammer and spike" and he r spike you both to the rail." Various expletives were conveyed, mostly by Claimant. No physical threa ::our "with his hands in his pockets" after the confrontation, but then worked. He says he was holding a light and couldn't be expected to do that and spike at the same time. The person who first griped about his not working was another worker of the same rank.
                                                            I


In discharging claimant, the carrier also took into consideration the fact that claimant was absent from work the following Monday, January 13, 1975. 'Lie reported in January 14, and said he was sick, and the carrier makes a point that he should have reported before. But claimant states "...my foreman has no phone. We hav that means that I have to get out of bed sick, drive on the job, try to locate a supervisor in the track department to report in sick."
                      Award Number 21564 Page 2

                      Docket Number Mq-21689


          Rule 12(h) of the Agreement provides:


          "An employe shall not forfeit his seniority rights if he is off without leave of absence because of personal illness or injury, serious illness or death in his immediate family, or a similar emergency; but he should request leave of absence in advance if at all possible, and, in any event, he should notify,his foreman or other superior officer as soon as possible as to his reason for being off, and request leave of absence, and he may be required to furnish acceptable proof as to his reason for being off without proper leave.''


We cannot find cause for the discipline in Claimant's absence on January 13.

 In the proceeding below, the Union relied heavily on Rule 27(b), which provides in part:

          " Decision will be rendered within 30

          days From the date investigation is completed."


The hearing was held on January 23, 1975, and the decision letter was dated February 21, 1975. It was personally delivered to Claimant on February 22nd. '-Thirty days expired Febn=.ry 22, the rule being that the first day is excluded from the cou-t and the last day is included. Third Division Award Ivo. 21541, Despite reliance on this argument below, we deem it important that this cause be determined-on its merits.

 We inquire whether there was substantial evidence to support the discharge, whether a fair investigation took place and whether the penalty was arbitrary or capricious.

 Insubordination is defiance of authority. -There is no doubt that even momentary insubordination, clearly shown, justifies discipline, including discharge. We do not weigh conflicting evidence, judge credibility or substitute our judgment for th the decision.

 l
                      Award Number 21564 ?age 3

                      Docket Number MW-21689


Our recitation of the facts assumes the carrier's version as true- Thus, we do not weigh ccnflicts of evidence or judge credibility in testing that evidence for sufficiency. Claimant was the subject of a heated exchange at 1:30 a.m. after 17 hours of work. He responded verbally to challenges made to him. The language, was not cut of the ordinary for a railroad gang. He sulked for any real intention of putting down authority. In fact, he went back to work spiking rail.

 Considering all of the circumstances, including the late hour, long hours and bad weather, we do not consider a flare of tempers such as this to be substantial evidence of insubordination.

 Yet this is a very close case. Claimant's usual foreman wasn't at work. He was assigned by Assistant Roadmaster Green. to work with foreman Black. During the incident, he told Black, "I only take orders from Green." This was a serious infraction, not to be tolerated. Claimant entered carrier's service August 3, 1973, and had been in its employ some one year and one-half when he was dismissed.

 Orly the extenuating circumstances surrounding the precise event give us any cause whatsoever to mitigate the punishment. We cannot justify an award of back pay or benefits, but will restore claimant tp,'service with seniority.

          FIUDINCS: 'he 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 Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 193%+;

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

          The agreement was violated.


                        A W A R D


          Claim sustained to the extent indicated in the Opinion.


                              NATIONAL -1AILROAD ADC-UST2r'i~T 30AIRD

                              By Order of Third Division


ATTEST:
      Executive Secretary


Zated et C:-icago, Illinois this 31st day of May 1977.