NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 23887

THIRD DIVISION Docket Number MW-23768

Josef P. Sirefman, Referee (Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE . .

(Elgin, Joliet and Eastern Railway Company

STATEMENT OF CIA1M: "Claim of the System Committee of the Brotherhood that:

(1) The dismissal of Foreman Otis Fogle, Jr. for alleged insubordination was without just and su (system File vM-8-79/sAC-9-79).

(2) Foreman Otis Fogle, Jr. shall be reinstated with seniority and all other rights unimpaired and shall be compensated for all wage loss suffered."

OPINION OF BOARD: Claimant Otis Fogle, Jr., a foreman, was charged with

"Insubordination in your refusal to comply with the proper order of R. W. Weber, Assistant Track Supervisor, at about 5:25 P.M. Thursday, February 1, 1979, to go from the Garage to Base 4, Kirk Yard, Gary, Indiana to get Truck 211 for use during your work assignment."

A hearing was held on March 8, 1979 and Claimant was dismissed from service on march 16, 1979.

Examination of the record before the Board establishes that the Carrier had good cause to conclude that Claimant was insubordinate an February 1, 1979. There was substantial evidence in the record to sustain the Carrier's decision to discipline Claimant. However, under the circumstances, the penalty of dismissal is too severe. Accordingly it is our determination and we so order that Claimant is to be restored to service with seniority rights unimpaired but without back pay for the time spent out of service.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and ell 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 Jvn= 21, 1934;

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

That the discipline was excessive.

Award Number 23887 Page 2

Docket Number MW-23768

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 yLA1t.

Rosemarie Brasch - Administrative Assistant

Dated at Chicago, Illinois, this 13th day of May, 1982.

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