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(Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE:
 (Illinois Central Gulf Railroad Company

                  STATEMENT OF CLAIM; "Claim of the System Committee of the Brotherhood that:


(1) The dismissal of Trackman C. Smith for alleged 'violation of Maintenance of Way and Structures Rule R' was without just and sufficient cause and wholly disproportionate to the offense with which charged (System File C-90-T-76/134-296-130 Sp1. Case No. 1047 Mor'W).

 (2) The benefits and privileges of Agreement Rule 34(i) shall now be extended and applied to Claimant C. Smith."

 OPINION OF BOARD: On April 7, 1976 Mr. Smith was notified to attend
 a hearing to determine whether, on April 2, 1976,
 he had been insubordinate to his foreman. That hearing was scheduled
 to be held April 12, 1976 before Hearing Officer C. P. Davis, Carrier's
 Division Engineer. Claimant appeared at that hearing but demanded an
 adjournment so that he could obtain certain witnesses. During adjourn
 ment discussions among Claimant, Hearing Officer Davis and the
 Organization's Local Chairman, Claimant became boisterous, and used j
 threatening and profane remarks toward Hearing Officer Davis.
 Claimant's Local Chairman tried unsuccessfully to quiet him during
 that outburst. A one-day adjournment ultimately was granted and the
 hearing into the alleged insubordination on April 2, 1976 was held on
 April 13, 1976. Claimant failed to appear at that hearing which was j
 held _in absentia. On the basis of that hearing he was assessed
 disciplinary suspension of 30 days, to commence April 12, 1976.
 That 30 day suspension was served by Claimant and never has been
 grieved. However, under date of April 20, 1976 Claimant was served
 another Notice of Investigation into his conduct on April 12 and 13,
 1976 as follows:

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                    Award Number 22572 Page 2

                    Docket Number MW-22177


        " ...to determine whether you were insubordinate, discourteous, quarrelsome and used profane and vulgar language to Division Engineer Davis at approximately 2:30 P.M. on Monday, April 12, 1976, in his office during an investigation, and to determine if you were insubordinate in your failure to appear at the investigation which was postponed at your request to Tuesday, April 13, 1976, at 2:00 P. M."


A Hearing Officer other than Division Engineer Davis conducted the investigation on April 27, 1976. Claimant attended that hearing and was represented by his Local Chairman. Our record indicates that at some point during the hearing day Claimant apologized to Division Engineer Davis for his intemperate remarks on April 12, 1976. Following the hearing Carrier found Claimant guilty as charged and dismissed him from service.

 There is no question that Claimant received a proper investigation nor that he was guilty of using insubordinate, quarrelsome and profane language in addressing the Division Engineer on April 12, 1976. His behavior was absolutely unacceptable and need not be tolerated by any employer. The only question in the case is whether the ultimate penalty of dismissal was excessive. In consideration of Claimant's clean discipline record prior to April 1976 and his apparently sincere apology to the Division Engineer we conclude that termination of all service is unreasonably severe for his act of intemperance. We shall reduce the penalty to suspension without pay with the additional admonition to Claimant that this may be his last chance to prove that he can conduct himself properly toward his authorized supervisors. With that understanding, Claimant shall be reinstated to service with serioritT 'snixpaired but without pay for lost time. i 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 Pa ilway Labor Act, as approved June 21, 1934;
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                    Award Number 22572 Page 3

                    Docket Number M&T-22177


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

        That-the penalty imposed was excessive.


                    A W A R D


Part 1 of claim sustained to the extent indicated in the Opinion and Findings.

        Part 2 of claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: aeAli &W
        Executive Secretary


Dated at Chicago, Illinois, this 30th day of October 1979.

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