(United Steelworkers of America, AFL-CIO PARTIES TO DISPUTE:

STATM= OF CIA124: (1) That Maintenance of Way Laborer, Gary Snyder
 was unjustly held out of service and subse
 quently discharged from this Carrier's service.

 (2) That accordingly, the Carrier be ordered to restore claimant back to service with all his seniority rights unimpaired and that he be compensated for all lost pay and benefits beginning with August 27, 1976, until the final settlement of this claim.

 OPINION OF BOARD: Claimant was employed as a track laborer by the
 Newburgh and South Shore Railway Company. On August 27, 1976, the maintenance gang to which claimant was assigned was programmed to perform overtime work replacing a piece of broken rail located on the property of the Maintenance of Way forces normally and regularly performed such work on a for-hire basis for the Steel Company.

 On this date claimant refused to perform the scheduled overtime work. As a result of this refusal, he was required to attend an investigation on September 7, 1976, "* * * to determine whether you were insubordinate in violation of Rule 'iC' of this Carrier's rule Following the completion of the investigation, Claimant Snyder was dismissed from Carrier's service.
The dismissal was subsequently appealed on the property and has come to this Board for review and final adjudication. Petitioner has advanced several contentions as claimant, the most important of which concern themselves with:





                  Docket Number MS-22021


Based upon our review of the entire record in this case, we conclude that:

 1. There were no "mitigating circumstances" present in this case which could justify claimant's refusal to perform the overtime work as directed. Petitioner's argument relative to claimant's"constitutional rights to privacy" is not germane here. The rights of an employe/ employer relationship stem from the terms and conditions of the collective bargaining agreement. Thi such negotiated agreements. We may not become involved in interpretations of constitutional rights w "* * * the redress of the individual civil and constitutional rights of the claimants must be sought before som Division Award No. 5491 ('dnox) ). There is nothing in the record before us which exempts claimant from making his reasons for desired absence known to his employer.

 2. The record contains no information which indicates or implies that Carrier may require the performance of overtime work only in emergency situations. In the absence of specific rules restricting such performance, Carrier is the sole deter A review of the record in this case indicates that Carrier's request for overtime work was not limited to claimant, but rather encompassed the entire gang plus additional forces as well. The work was necessary - if not of an emergency nature. Claimant was not privileged to refuse performance without a valid
3. The severity of the discipline assessed causes us some concern. There is no question but that we subscribe to the general proposition that insubordinate actions on the pa corrected, they undermine the entire discipline structure without which no organization can function. However, here we have a situation where there is no record of prior derelictions and admissions by Carrier that the employe is a "good worker". Claimant has been out of service for more than a year. We are inclined to believe that the discipline imposed has served its purpose. Accordingly, we shall order the return of claimant to service with seniority unimpaired, but without any payment for the time he has been out of service. We further counsel claimant that repeated offenses of this nature need not be tolerated by Carrier and that proven recurrences of this type of unacceptable conduct will result in his termination by Carrier.
                  Award Number 21837 Page 3

                  Docket Number MS-22021


        FINDINGS: 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 Employe 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 discipline imposed was excessive.


                      A Tr1 A R D


        Claim sustained to the extent indicated in opinion and Findings.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 6th day of January 1978.