Lamont E. Stallxorth, Referee


(Brotherhood of Maintenance of Way 9nployes PARTIES TO DISPUTE:
              (Illinois Terminal Railroad Company


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


(1) The dismissal of Laborers S. J. Musgrave and L. L. Osborn for failure `to repair a broken rail or rails subsequent to twelve noon on December 18, 1979' was excessive and wholly disproportionate to the offense with which charged (System Files ITRR 1980-12 and MR 1980-13)·
(2) The claimants be reinstated with seniority and all other rights unimpaired and they be compensated for all wage loss suffered."

 OPINION OF HOARD: Prior to their dismissal, Claimant S. J. Musgrave and.
 L. L. Osborn were employed by the Carrier as trackman. At the time of the incident involved here. Claimants were xorking under the supervision of Foreman Robert Smith. The Claimants and -Trsekman R. L. Feed (also working undue Foreman Smith) had been notified that they were to be laid off at the. close of work on December 18, 1979 by ref Engineer J. M. Hierne.

 Prior to the close of work on December 18, 1979 Supervisor HilTigoss made it known that Foreman Smith's crew was to be used to replace three (3) broken rails that day. The Claimants, Trackman Reed and the other crew members were engaged in such work until they left the work site at 3:30 PM in accordance with their furlough notice.

 Subsequently, Claimants received notices dated December 29, 1979 informing them that a formal investigation was to be held on January 7, 1980 in regards to the charge that they failed to repair a broken rail or rails subsequent to 12:00 noon on the subject date after being ordered to do so by Track Supervisor S. Hilligoss.
Subsequent to the investigation the Claimants were notified by letter dated January 16, 1980 that they were found in violation of Carrier's Rule H and dismissed from Carrier's service.

 The Carrier maintains that the Claimants walking off the ,job after being ordered by their supervisor that they would have to work until the repairing of the broken rails was completed, constitutes acts of "desertion from duty," "insubordination," and 'willful neglect," prohibited by Carrier's Rule H.
                    Award Number 23975 Page 2

                    Docket Number MW-23947


Supervisor Hilligoss testified that the broken rails made the tracks impassable for trains and that he instructed Claimants to work until the rails were repaired. Supervisor Hilligoss further testified that the Claimants stated they would not work pest their regular quitting time. Further, Supervisor his immediate supervisor, Assistant Chief Engineer Metcalf who came to the scene.

 Assistant Chief Engineer Metcalf testified that since there was some question is Claimants' minas concerning the lay-off notice, he explained the operation of the furlough rule to them. The Assistant Chief Engineer testified that he explained to Claimants that they would have to continue to work until the work was completed and that the Claimants walked off the fob at < 3:30 PM.

 Carrier maintains that in light of the Claimants' short service with the Carrier (Musgrave.. 15 months; Osborn, 14 months) coupled with Claimants' failure to appear at the investigation, the penalty of dismissal was justified. Further, the charges of desertion from duty and insubordination warrant discharge of Claimant 8832, 10034, 72255, 72492, 7-2985, 14601, 19698 and 197913 Insubordination: Third Division Awards 158, 16074, 16118, 1E281, 16347, 17154, 17153 and 20189).

 Organization maintains that Claimants were hot.inauboniinate.nor.in any way attempting to impugn the authority of their supervisors rhea they did not remain on duty after 3:30.pM on December 18, 1979 but were instead following the written instructions issued to them by Chief Bogineer Bierne. Tra Supervisor Hilligoss testified that the Claimants informed their Foreman that they were leaving and that Foreman Smith knew that the Claimants had letters of furlough. Assistant Chief Engineer Metcalf also testified that the Claimants had been furloughed
Organization asserts that the dismissal of Claimants was excessive and wholly disproportionate under the circumstances peculiar to this case. The organization notes that a "30 day suspension (held is abeyance)" was imposed upon Trackman Reed while dismissal was imp the same offense. The Organization maintains that the disparity between the supreme penalty of dismissal imposed upon the Claimants sad the suspension imposed upon Trackman 1989, 15751, 22oo6, 22160 sad 22480).

 Upon a careful consideration of the record is this matter, the Board concludes that disciplinary action was warranted. However, in these circumstances the Board concludes that the discipline was excessive. The tuna that claimants have been out of service should constitute sufficient discipline. The Board concludes that Claimants shall be restored to service with seniority and other rights unimpaired, but without any compensation for time lost while out of service.
              ~&ard :lumber 23975 . Page 3

              _ Docket number Fdri-2397


        FMINGS: The Third Division of the Adjustment Board., upon the whole r3cord and all the evidence, finds sad holds:


        That the parties waived oral hearing;


That the Carrier and the Ihiployes involved is this dispute are respectively Carrier and Euployes within the meaning of the ?,railway Tabor Act, as approved June 21, 1934;

 That this Division of the Adjust=ent Board has jurisdiction over the dispute involved herein; and

        That the discipline was excessive.


                        A Si A R D


        Claim sustained is accordance with the Opinion.


                            IGdTIOTML RAILROAD ADJUSIMIr- BOARD

                            By Order of Third Division,


ATTEST: Acting Exeaxtive Secretary
        2Tationsl Railroad Adjustment Board


D ~ .

 y
 Rose is 3rasch - Administrative Assistant

 Dated at Chicago., Illinois, this 27th day of August 1982·