PARTIES TO DISPUTE:

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

 (1) The dismissal of Trackman Henry Smith for alleged insubordination was without just and sufficient cause and wholly disproportionate to such a charge (system File 37-scL-79-89/12-39(79-42) J).

 (2) Trackman Henry Smith shall be reinstated with seniority and all other rights unimpaired and compensated for all wage loss suffered."

 OPINION OF BOARD: On July 2, 1979, the Claimant, an Extra G,ng Laborer, was
 directed to attend an investigation in regard to an alleged violation of the portion of Carrier Rule No. 18 relating to insubordination. The charges were made in connection with his alleged refusal, when instructed by Foreman H. M. Bryant, to help load a "frog" into a back of a pick-up and with his alleged refusal to accompany Foreman Bryant to talk to the Roadmaster about the incident.

 Ea considering the evidence, we find that the Claimant's refusal to lift the "frog" is mitigated substantially. The evidence makes clear that the Claimant did not per se refuse to load the "frog" but suggested that it was too heavy to lift by hand and mare or less suggested it be lifted with the aid of jacks. The Claimant was also concerned about injuring himself as he had recently recovered from a hernia operation. The Claimant's suggestion is particularly mitigating in light of Carrier Witness Coleman who testified that an attempt was made at lifting the "frog" by hand but that it proved to heavy and that it couldn't be budged. He and other witnesses also testified that the "frog" was ultimately lifted by the use of jacks. The Supervisor's interpretation of the Claimant's so-called "refusal" as insubordination was hasty.

 In respect to the Claimant's refusal to accompany the Foreman to see the Roadmaster we find the evidence is substantial. The Claimant clearly erred when he refused to comply with Foreman Bryant's directive.

 While the Claimant's insubordination in refusing to accompany the Foreman is serious in and of itself, we believe the lack. of proof_on.the other portion of the charge mitigates the situation as a whole to the degree that we believe permanent discharge to be excessive. We will therefore direct the Claimant to be reinstated with rights unimpaired but without pay for time lost. The Claimant will have this opportunity to show he has learned the necessity of


complying with the rules that require compliance with the directives of supervisors. It is well established that if an employee is aggrieved by the instructions of a supervisor he is obligated to comply now and grieve later.

 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.


                      A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 28th day of April 1982.

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