(American Train Dispatchers Association PARTIES To DISPUTE:

STARLIT CF CLAIM: "Claim of the American Train Dispatchers Association
 that claimant H. E.Cupp was improperly held out of
 service for a period of eleven (11) days and assigned this period of
 eleven days as suspension after conclusion of trial. Claimant vas
 charged on three (3) counts of insubordination which were not proven
 by management during the trial. The removal from service sad the
 discipline of eleven (11) days is unjust, harsh and uncalled for
 as record of trial indicated.

 The claimant should be made wr -le for the time held out of service sad the discipline of eleven (11) days removed from his record."

 OPINION OF HOARD: Claimant was rocking se 3-11 p.m. Relief Movement
 Director in the Carrier's Harrisburg, Pa. office on March 26, 1979, when Supervisor Train Operation G. E. Waltman relieved him from duty at approximately x:00 pone The nazi day r Claimant was given notice that he was "held out of service beginning 4:00 P.M* on March 26, 1979, in connection with insubordination to taro supervisors between approximately 3:55 Pam* sad 4:00 p.m. on March 26, 1979" which vas specified to be as follows:










Thereafter, on June 13, 1979, the day following his trial, Claimant was issued a Notice of Discipline imposing eleven (11) days' suspension, which constituted the amount of time held out of service prior to his trial.


The Organization claims that Claimant was improperly held out of service for a period of eleven (11) days prior to his trial inasmuch as his actions did not constitute a ma3or offense, which, under Regulation 6-A-1 of the Agreement, c the only basis for such penalty. Moreover, the Organization argues that Claimant was not guilty of insubordination in the manner accused.

 The Carrier asserts that its action of withholding Claimant from service prior to his trial was entirely pa'operp inasmuch as the Board has ruled that insubordination is a serious offense warranting the imposition of discipline as severe as outright discharge. Further, the (terrier asserts that Claimant's action of failing to comply with reasonable instructions of a super insubordination.

 The evidence shoes that on the afternoon in question, Claimant received a call from Trai.amaster A. I. Robinson at apparoximately 3:55 P·m. asking Claimant if he would "have his Train Dispatcher" hold a certain train (HE-11) back from entering Eaola Yard, sad to instead allow another train (ENSY-6) to live Enols Yard. Claimant, noting the heavy concentration of trains is the territo the usual meaner for handling such matter was either directly with the Train Dispatcher by the involved Ynidmaster, or through a Tower Operator, or with the Supervisor Director Operations. Their conversation was terminated shortly thereafter, with Mr. Robinson a lwin°, and Claimant denying, that Claimant hung up on him.

 Mr. Robinson then called Supervisor Train Operator G. E. Waltman., who issued instructions to the Train Dispatcher, and no resultant delays to trains occurred.

 Mr. Waltman then told Claimant that he should have granted Mr. Robinson's request. Claimant stated that "if you don't like the way

    .

I am doing my fob" to "send him home." Mr. Waltman "then told him to go

 The notices of Claimant's being held out of service and Trial followed.

 The real question before the Bawd is whether the conduct alleged constituted insubordination. While there are contentions that Mr. Robinson did not have supervisory authority over Claimant, sad Mr. Waltman acknowledged that Claimant did not fail to obey any order of his, the Board finds that what is involved was more like a difference of opinion over the meaner in which the work in question - movement of trains in and out of Enola Yard - could be accomplished.
            _ Award Number 23572 Page 3

            Docket Humber TD-23477


While the Board in no way finds that Claimant was without fault in this incidents it does note that he apologized far his behavior in talking to both Mr. Robi Wellman, ands further the Board finds that there were mitigating and extenuating circumstances surrounding the incident in Claimant had been off duty for several months due to a personal injury incurred prior to the inciden to return to duty by Carrier's Right Supervisor of Train operation in order to relieve overtime payments because of an inadequate force of extra employee. The incident in question occurred on either the third or fourth day following Claimant's return to works cad the evidence shove that Claimant had ex that moaning involving health problems to himself sad other family members. While such factors do net relieve Claimant of all responsibility for his somewhat intempera lessen the tenor of "deliberateness" or "insubordination",

 In ooaclusiono it is the opinion of the Board that the discipline in question should be reduced from Having so founds the Board world make one final observation. In the Board's opinion., if the situation in question had bees properly explored at the time of the iacidentp taking into account the mitigating and extenuating circumstances referr would have reached this level.

        The eleven (11) day discipline should be reduced to a reprimand.


        FINDINGS: The Third Division of the Adjustment Boards upon the whole record and all the evidence,_finds and holds:


        That the parties waived, oral hearing;


That the Carrier and the Employes involved is this dispute are respectively Carrier and Employes within `,.he meaning of the Railway Labor Acts as approved June 21p 1934;

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

        That the discipline was excessive.

Award Number 23572
 Docket Number TD-23477

 A W A R D
Claim sustained is accordance with the opinion.

 Page 4

 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division

 ATTEST: Acting Executive Secretary
 National Railroad Adjustment Hoard

 Dated at Chicago, Illinois., this 10th day of March 1982.

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