PARTIES TO DISPUTE:

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

 (1) The twenty (20) day suspension imposed upon Trackman S. J. Frison for alleged violation of 'Rule H' was without just and sufficient cause and on the basis of unproven charges (ITRR 1980-31).

 (2) The claimant's record shall be cleared and he shall be compensated for all wage loss suffered.

 OPINION OF BOARD: An investigation was held on August 1, 1980 to determine
 whether Claimant, a track laborer, was guilty of insubordination on July 21, 1980 when he allegedly Foreman R. D. Frey, Jr. Specifically, Claimant was directed to resume unloading switch ties from inside a railroad car which necessitated hooking the ties to the Speed Swing Cable. Based on the investigative record, he was found guilty of violating Rule H of the Illinois Terminal Operating Rules and assessed a twenty (20) days suspension. This disposition was appealed.

 In defense of his position, Claimant contends that he was not insubordinate, since it was unsafe to enter the railroad car at the time Foreman Frey directed him to unload the ties. He testified that he believed if his coworker had pulled up th would have been injured. He argues that his foreman was unaware of the unsafe conditions inside the car since he was on the ground when he issued his instructions and could not observe what was occurring inside the car. He testified that his foreman disregarded him, when he tried to apprise him of the situation and asserts that he complied with Carrier's applicable safety regulations.

 Carrier contends that he was clearly insubordinate when he refused to comply with the foreman's instructions, since he persistently argued with Foreman Frey that one man could handle the cable inside the railroad car. The Foreman testified that one man could not safety handle the cable and noted that Claimant endangered himself by remaining on the edge on top of the car. The Foreman testified that he had given Claimant a direct order to unload the ties. but it wasn't until he was compelled to radio the Roadmaster for assistance that Claimant finally complied with the order.

 In our review of this case, we concur with Carrier's position. Recognizing the validity of a defense that unsafe working conditions justify an employe from exposing himself to danger, we do not find these conditions to be present here. Outside of Claimant's averment that it was unsafe to enter the car, we have no supportive or corroborative evidence that it was unsafe


to perform his duties. There was no confirmatory testimony by Track Laborer Randy Miller that it was unsafe to enter the car and Claimant's argumentative behavior patently reflects uncooperative conduct. It appears that Foreman Frey was concerned with the safety of the two track laborers when he ordered them to resume unloading ties from inside the car, but Claimant's refusal to comply with this order, militated against safe operations. Both track laborers were in fact, placed in danger by Claimant's perception that ore man could handle the speed swing cable inside the car end his deportment was insubordinate when he refused to obey Foreman Frey's instructions. Moreover, it was not later excused or mitigated when he decided to comply with the order, since it required Foreman Frey's call to the Roadmaster to enforce his compliance.

 As a rule, we are reluctant to modify a disciplinary penalty where the evidence of record affirms the charges, but we believe in this instance, that twenty (20) days suspension, especially in view of Claimant's apparent past satisfactory employment record, is somewhat excessive. We will reduce the penalty to ten (10) days suspension with the understanding that we will not look kindly upon any future recidivist behavior. An employe, to be sure, can refuse to work in an unsafe environment, but he runs the risk of disciplinary punishment, if he cannot demonstrate persuasively that safety was at issue. In this case, we have no evidence that the inside of =he railroad car was unsafe and Claimant was insubordinate when he refused to enter it to unload ties.

 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 Ad ustment Board

 By
Rosemarie Branch - Administrative Assistant

 Dated at Chicago, Illinois, this 8th day of June 1982.