(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEi9ENT OF Ct,AD4: ° Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Machine Operator Allen R. Hargrove for alleged insubordination was without just and sufficient cause and wholly disproportionate to the charge (System Docket 484).

 (2) :`3.c:.ine Operator Allen '."..Hargrove shall be reinstated with seniority and all other rights unimpaired and he shall be com=ensated for all wage loss suffered."

 OPINION OF BOARD: The Claimant, Allen R. Hargrove, entered the service of
 the Carrier on August 30, 1976 as a Trackman. On may 16, 1979 Claim=nt:neid a position as a Machine OI,e=ator at Ashtabula Harbor Yard, Ashtabula, Ohio. He was working under the.supervision of Foreman J. A. Schauer and,Assistant . Supervisor R. J. Rumsey when the incident here occurred.

 At approximately 8:10 A.M.,, on May 16, 1979, Claimant Hargrove was informed by Foreman Schauer that he had been displaced by C. J. Nitz, an a operator, and to let Mr. Nitz replace him on. the machine. The Claimant refused to follow Foreman Schauer's instructions.

 At approximately 3:05 P.M. on Nay 16, 1979, R. J. Raussy, Assistant Supervisor-Track, informed the Claimant that in order to work the next day he would :nave to :wake a bump before the starting time (7:00) A.M. By 7:00 A.M. on bray 17, 1979 the Claimant had not made a bump and he was informed by Foreman Schauer that Claimant would not be vermitted to work until he did so. The Claimant went to the :cork him from the position with instructions to make a bump. The Claimant did not make a bump.

 Under the date of May 30, 1979, the Claimant was given a notice to attend a trial on June 6, 1979 to answer charges in connection with the following:







Subsequent to the trial the Claimant was notified, dated June 8, 19792 that he was "Dismissed in all capacities". The appeal of Claimant Hargrove was handled up to. and including the Senior Director-Labor Relations. The Senior Director denied Claimant's appeal in a letter dated November 29, 1979. The Carrier contends that the Claimant admits he failed to follow orders given to him. Claimant Hargrove testified as follows:











The Carrier maintains that the Carrier is not'required to prove that which has been admitted by an employe charged with an offense (First Division Award Nos. 4848, 8275, 16712; .Third Division Award Nos- 7042, 8311 and 9033). Further, the testimony of Messrs. Rumsey, Schauer and Hale corroborates the fact that Claimant failed to fal:ow orders given to him by his supewisors.

 The Carrier maintains that the Claimant had an obligation to obey instructions given to him and the channels provided. Further, the Claimant had no sufficient reason to believe that such instructi his health or abnormally dangerous conditions for work.

 The Carrier maintains that failing to follow orders ,justifies dismissal (First Division Award No. 16596, Second Division Award Nos. 4672 and 4782; Third Division Award No. 16074).

 The Claimant maintains that he did not follow the instructions given to aim on May 16, 1979 because of Claimant's misunderstanding and/or misinterpretation of the rules. The Claimant testi position as operator of the spiking machine because he was not displaced prior to the beginning of his work period (7:00 A.M.) that day.
                Award Number 23985 Page 3

                _ Docket Number MW-24061


        Foreman Schauer testified as follows:


    "Q: Did Mr. Hargrove explain to you why he was refusing to be bumped by Mr. Nitz?


    A: Mr. Hargrove stated that it was an illegal bump and I informed him that it was a legal bump as was explained to me by you later, Mr. Wheeler."


Claimant contends that he was permitted to work his assigned position on May 16, 1979 regardless of his displacement by Nitz. The Claimant, therefore., understood no need for him to the instructions of Foreman Schauer and Assistant Supervisor Rumsey.

 Claimant maintains that the decision of dismissal under the circumstances involved here was exceedingly harsh and disproportionate to the charge (Second Division Award No. 701L0; Third Division Award Nos. 10878 and 21832). The Claimant further maintains that when discipline is excessive, capricious, improper and unwarranted it cannot stand. (Award Nos. 2813.. 6o74, 10582, 11556, 14720, 14339, 14479 and 16166).

 The Board has long held that refusal to obey a direct order is grounds, for discipline including possible dismissal. (jThe.award precedents on this-point X'o clearly support the -principle that an employe. should "work (obey) now and grieve later.") In the instant wetter Claimant violated this principle.

 Claimant further exacerbated the matter. by refusing to bump on the second day. The Board is of the opinion that even an employe's misunderstanding of rule which leads him to disobey an order is not a sufficient reason to immunize an employe from d sup.-ported by substantial evidence on the record. Therefore the Board concludes that the discipline assessed was not premised on caprice or unreasonableness. Accordingly, the Board denies the claim.

        FrdT1:'G5: 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 `she Lmpioyes involved in this dispute a=a respectively Carrier and a~ployes within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

        That the Agreem_enr, was rot violated.

                    Award Number 23985 Page 4

                    Docket Number MW-24061

                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMtiT BOARD

                          By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemnxie Brasch - Administrative Assistant

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

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