PARTIES TO DISPUTE~(Terminal Railroad Association of St. Louis

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

 (1) The discipline assessed Trackman Cornelius Goss for alleged insubordination was without just and disprwea charges and in violation of the Agreement (System File TRRA 1978-44).

 (2) Trackman Cornelius Goss shall be compensated for all wage loss suffered."

 OPINION OF BOARD: Claimant is a track laborer who, at the time of the incident,
 was assigned to Gang #9, He was engaged in replacing rails
 at Wiggins #2 yard. Foreman Hollis was in charge of the gang. Claimant and the
 foreman apparently became involved in an exchange over how same jobs would be
 performed and whether claimant would perform certain tasks.

 The foreman, thinking that claimant's words and actions constituted insubordination, took him out of service. At about 11:00 a.m. on November 3, 1978, the foreman had claimant escorted from company property by Carrier's Police Department.

 Carrier, thereafter, by letter dated November 7, 1978, informed claimant that he was being charged with insubordination and that a hearing into the matter would be held. The hearing was conducted on November 16, 1978, A review of the record of that hearing reveals that claimant was granted all procedural and substantive rights requi found claimant guilty of insubordination and assessed as a penalty a 30-day suspension.

 The organization is arguing that claimant did not refuse to comply with an order of his foreman. He may have been slow in performing his duties, but he was not insubordinate.

 Carrier alleges that claimant did refuse to comply with his foreman's orders. He was uncooperative and obstructive is his attitude about his work. Insubordination is a dischargeable offense and claimant should feel fortunate that he was only given a 30-day suspension for his behavior.


We have carefully reviewed the entire record of this case and mist conclude that claimant's behavior was, in fact, insubordinate and that he should be subject to discipline for these actions. Claimant, by his own testimony did say that he refused to follow orders. He also said that mace he eventually did what he was told, he did, in the final analysis, follow orders. Therefore, he was not insubordinate.

 The Organization picked up on this point and argued throughout that claimant worked too slowly for his foreman; he was not insubordinate. This argument is strained and made it difficult for his foreman to direct him. It also reveals that a number of witnesses at the hearing testified that claimant did refuse to follow certain orders.

 Because of its appellate function, this Board finds itself is the position of supporting a decis trier of the facts. There is no question that the record points out that the foreman was "baiting" the claimant into saying that he refused to follow his directions. When giving an order, he asked him repeatedly if he was refusing that order. This certainly is not standard management procedure and the Board thinks that Carrier should not condone it. The problem here, however, is that claimant rose to the bait and did refuse to follow orders. Isis behavior was insubordinate and he should be disciplined. The question is, however, should claima to a degree, provoked and when it is also clear that the foreman's story does not hold up on all points?

 The foreman alleges that claimant refused to remove the gauge rod when he was ordered to do so. The record does not support this accusation. The foreman clearly stated to the record that claimant did not refuse to remove the gauge rod. Given this admission and the fact that the foreman questioned claimant persistently about whether he intended to follow his orders, it is this Board's opinion that claimant should not be assessed a 30-day suspension.

 The foreman's hands were not clean in this instance. But neither is the claimant fully exonerated. Gives the shortcomings of both people and the fact that Carrier failed to prove claimant guilty of insubordination on the gauge rod incident, this Board bel is the judgment of this Board that Carrier was arbitrary is its assessment of a 30-day suspension. The Board directs that this suspension be reduced to a suspension of five working


                        Docket Number MT=23238 Page 3


        That the parties waived oral hearing;


That the Carrier sad the Employes involved in this dispute are respectively Carrier and Employee 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 was excessive.


                          A W A R D


        Claim sustained in accordance with the opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: glAUv
            Executive Secretary


Dated at Chicago Illinois, this 19th day of June 1981.
            DISSENT OF CARRIER FMS

            _ TO

      __ AWARD 23315 (mcKEr Mw-23238)

                      Referee Dennis)

The record in this dispute substantiated that Claimant was insubordinate and was slow is performing assigned work. The Majority at Page 2 of the Award concurs in the Carrier's conclusion in this regard. ,The..Axard should have stopped there as the conclusion had been reached that the charges were substantiated and Carrier had sufficient cause for assessing discipline.
 However., the Majority seems to have given great weight to the bare assertion is the transcript by Claimant and one of six (6) witnesses called to testify that the foreman van riding Claimant. Despite the weight of evidence otherwise, there was no material examples presented to support such allegation.
 While the foreman may not be blameless, he is certainly not responsible for 83% of the situation. Yet that is the disposition made is this case when the record clearly supports the fact that Claimant did refuse to follow proper instructions.
 The circumstances involved were considered is assessing only a 30-day suspension for such a serious infraction. Yet the Majority has simply concluded that the discipline assessed was not reasonable.

        In Second Division Award 8223 (Rookie) it was stated:


    "This Hoard has consistently held as a matter of judicial policy that insubordination in whatever guise or form la just unacceptable in the railroad industry,"

Because the Majority here has dispensed personal justice, we must dissect.
          DISC OF CARRM S

2 _ TO AWARD 23315 (DOCKET MK-23236 )

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