Abraham Weiss, Referee


(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE
        _ (Louisville and Nashville Railroad Company


                STA72MENT O' CLAIM: "Claim of the System Committee of the Brotherhood that:


(1) The dismissal of Track Repairman R. A, Dunn was without just and sufficient cause and wholly disproportionate to the offense with which charged ZS-ystem File 1-17(7)/D-106485 8-306-1).

 (2) Track Repairman R. A. Dunn sha11 be restored to service with seniority, vacation and all other rights unimpaired and payment be made for all time lost."

 OPINION CF BOARD: Claimant was dismissed for refusal to start work
 when he reported at his duty station because it
 was raining heavily. Evidence at the hearing discloses that two other
 gangs at the site wax permitted to remain in the tool house until the
 rain diminished or stopped and that the main line was not blocked.
 Claiman t's foreman, at the hearing, stated that he did not consider
 the work to be done was of an emergency nature. He also stated that
 at other times, work was stopped an account of weather in connection
 with routine (non-emergency) work.

 Claimant's refusal to work in the rain resulted, after appropriate investigation, in his dismissal for insubordination. It is understandable that some discipline was warranted under all the given circumstances. This is in keeping with the .basic principle, well accepted in labor relations practice in industry, that an employe must comply with the instructions of his supervisor and grieve later. In the railroad industry especially, chaos would result if employes took it upon themselves to withhold their services at any time at their own discretion. The only exception to the "comply now and grieve later" doctrine arises out of situations where an employe's life or limb would be endangered (or the employe, in good conscience, believes there exists an imminent personal danger) by camping with instructions. This is not the case here. The claimant simply refused to comply with the foreman's instructions because other gangs present nearby were not being required to work in the rain.
                  Award Number 22157 Page 2.~

                  Docket Number 1dW-22170


If claimant felt that he was being unjustly treated in comparison to other gangs, his remedy lay within the grievance procedure, and not unilateral refusal to work. The proper procedure is for an employe to follow the instructions of his supervisor (unless obviously unsafe or unlawful), Claimant did not have the right to refuse to do a job assigned to him within his occupation, where health or safety hazards were not present, as was the case here. Claimant's recourse was to do the work and file a grievance to redress the wrong, if he felt his supervisors instructions were unfair or discriminatory. That is the whole purpose of the grievance procedure. In brief, an employe my not take the law into his own hands and refuse to perform the assignment properly given him by his supervisor. This principle is well established in prior Awards of this Board.

 It is understandable that some discipline was warranted under all the given circumstances. Claimant acted improperly and a6 a result subjected himself to the possibility of discipline by the Carrier. We are of the opinion, however, that the offense, as brought out by the evidence given at the hearing and investigation, especially in view of the mitigating circumstances described above, was not of such a degree as to warrant the drastic penalty of dismissal.

 In light of all the factors and circumstances previously described, it is our view that the discipline imposed by the Carrier was unduly harsh. A well established principle in labor arbitration is that an employe's past record must be given considerable weight when assessing the propriety of any disciplinary penalty. Neither the evidence at the hearing nor the correspondence on the property furnish any evidence of previous discipline being meted out to claimant for acts of like kind or other violation of Carrier's rules. Claimant's foreman, at the hearing, testified that claimant "follows instructions pretty good."

        In view of his past record and the above mitigating ---

circumstances, the Board is inclined to modify the discipline as it
 was excessive, and counsel the claimant that we consider this his
 last chance to improve his record.

 The period since his discharge shall be deemed a suspension. Claimant will be restored to service within ten (10) days of the date hereof, with seniority rights unimpaired bat without back pay.
                    Award Number 22157 Page 3

                    Docket Number Mw-22170


        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 dune 21, 1934;

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

        That the discipline assessed was too harsh and excessive.


                    A W A R D


Claim sustained to the extent indicated in the Opinion and Findings._.

                            NATIONAL RAILROAD ADJUSMENT HOARD

                            $· Order of Third Division


          ATTEST:J//(~(/r· ~~ Executive Secretary


          Dated at Chicago, Illinois,. this 31st dayy of July 1978.