(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Butte, Anaconda & Pacific Railway Company

(1) The dismissal of Track Laborer R. A. Duxbury was without just and sufficient cause and was unduly severe and wholly disproportionate to the severity of the offense with which charged (System File Grievance #53/BAW-R. A. Duxbury).

 (2) The Carrier shall now reinstate Claimant Duxbury to service and extend to him all the benefits of Agreement Rule 19(b)>"

 OPINION OF BOARD: Following an on the job incident on March 9, 1976
 Track Laborer R. A. Duxbury was dismissed from
 Carrier's service for alleged "insubordination and possibly inflicting
 bodily harm to his mediate supervisor, Section Foreman George M. Friez."
 Upon proper request by the Organization, Claimant was accorded a formal
 hearing into the charges following which Carrier found him guilty of
 charges and sustained the discharge. Same procedural objections were
 raised on the property but later abandoned and the matter comes to us
 solely on the question whether Carrier had sufficient evidence to support
 the findings of guilt and whether the penalty is appropriate.

 In March 1976 Claimant was working as a member of Section Gang No.' 5 out of Butte, Montana under the supervision of Foreman Friez.Claimaat and one or two other em cleaning track near an acid plant. That work site was relatively isolated and Claimar+ objected to the assignment, asserted that it was discriminating and unjust and also complained about the working conditions. It is not refuted that Claimant was working at a slow pace and had to be corrected on two occassions for not cleaning switches. Foreman Friez interpreted Claimant's slow and unsatisfactory performance as a protest although the organization suggests that weather and poor conditions required a slower than normal pace. In any event, instead of confronting the employe, Friez telephoned M.W. & S. Supervisor Young on March 9, 1976 and asked him to come to the job site and "straighten out" the Claimant.


YounZ and Friez walked up to Claimant as he was working on the track. Young initiated the conversation by asking Claimant if he had some kind of problem. According to Claimant Young said 'Wbst the hell is your problem?" According to Young he said to Duxbury, "I hear you have a personality problem with your Foreman." In any event, the record is clear that Friez said nothing while Young and Duxbury engaged in an animated conversation. While the record is also in conflict regarding subsequent physical contact, there is no doubt that Duxbury suddenly lunged toward Friez in a hostile manner. Friez backed away, throwing up his arms in a protective gesture. According to Duxbury he was merely shaking his finger at Friez for emphasis, no contact was made and he had no intention of striking the Foreman. Friez swore that Claimant came at him with clenched fists and struck or grabbed his left wrist.Young testified that Claimant j motion but he could not tell if contact was made. Another employe standing some 60.feet away saw Claimant gesticulating toward Friez in an angry manner but could not tell if contact was made. At that point iriez told Duzoury, "You're fired" and Young backed him up whereupon Duxbury was terminated.
                                                    r


Although supervisory discretion might well have prevented the confrontation in this case, there is no way to escape Claimant's culpability. Insubordination does n perform assigned work. 0n the facts before us, the acts of insubordination was completed when Claima toward the Foreman during the discussion about the work assignment. Nor is the seriousness of the offense substantially mitigated by the apparently incidental. touching or grabbing of the Foremarfs arm which we are convinced did occur. At best his actions constituted an assault and possibly assault and battery. The apparently minor nature of the unwarranted physical contact cant be determinative of his guilt. To condone oven such minimal insubordinate physical aggression would be an invitation to greater violence. Carrier does not have to countenance such conduct until a supervisor is actually injured or hospitalized. The record supports a conclusion that Claimant committed an unprovoked and insubordinate assault on his duly authorized supervisor. Given the nature of the offense and his past discipline record we cannot find Carrier's actions in dismissing him to be unreasonable.

        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;

                    Award Number 22638 Page 3

                  Docket Number W-22208


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 not violated.


                    A W A R D


        Claim denied.


                        NATICNAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division

ATTEST: a i a AZL
        Executive Secretary


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