(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Terminal Railroad Association of St. Louis

(1) The suspension of Track Laborer Charles E. Brooks 'for nineteen (19) days without pay' was without just and sufficient cause, on the basis of unproven and disproven charges, and on the basis of a hearing that was neither fair nor impartial (System File TRRA 1977-1).

 (2) As a consequence of the above, the claimant shall be allowed pay 'for eight (8) hours each day, beginning with November 15, 1976 and extending thru November 30, 1976, and all overtime to which he might have been entitled to if he had been permitted to work during this period of time at the Track Laborer's rate of pay."'

 OPINION OF BOARD: Claimant, an employe with 5 years' service,
alleged insubordination in that he refused to comply with his fore
 man's request to assist another employe working about 20 yards away.

 The record indicates that Claimant and his Foreman exchanged words on the day in question. Claimant alleges that the Foreman picked on him and that when he complained, the Foreman pulled a knife, whereupon he picked up a claw bar to defend himself. The Foreman called a Carrier policeman who escorted Claimant from the property.

 A witness at the investigation testified that the Foreman "was constantly on fflaimant/, nagging him to do this, do that ...." He also testified that he saw the Foreman pull a knife with the blade open.


Based on a careful review of the transcript of the proceedings and the record before us, we find evidence that the Claimant was guilty as charged. We are of the opinion that the Foreman, by his conduct, provoked the act of insubordination. We also conclude that when Claimant picked up the claw bar, it was for purposes of self-defense.

 Carrier has failed to prove the case in substance; it has failed to submit probative evidence to support the charge. Accordingly, we must sustain the claim and direct that Claimant is to be compensated for wages lost during his 19 days' suspension.

        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 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 Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    AW A R D


        Claim sustained.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


        ATTEST: Executive Secretary


Dated at Chicago, Illinois, this 16th day of A 1979:

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