(Brotherhood of Fail-nay, Airline and Steamship Clerks,
 ( Freight Handlers, Express and Station 21aployes
 PARTIES TO DISPiITE:
 (The Baltimore and Ohio Railroad Company

(1) Carrier violated the Agreement between the Parties when it arbitrarily determined that Chief Clerk V. R. Costa was insubordinate, boisterous and used profane and vulgar language to Yardmaster J. P. McCoy when he was instructed to copy a train order at Pit Yard Office, Hamilton, Ohio, on A~igust 9, 1978, and he was suspended from Carrier's service for fifteen (15) days, and

 (2) Because of such wrongful action, Carrier shall be required to clear the service record of Mr. Costa in connection with charges and discipline assessed and. compensate him for all wage losses suffered during the fifteen (15).day period he was suspended from Carrier's sex-Ace.

 OPINION OF BOARD: Claimant herein was disciplined following an investigative
 hearing held on August 15, 1978. The Notice served on
 Claimant provided in part:

As an initial position, Petitioner alleges that the notice was not precise as required by the ru he understood the complaint and was not impaired in any discernable fashion in mounting his defense. As we have said in prior disputes (e.g. Award 19746), rules such as that herein " ....are designed to protect employes from capricious investigations and to aff are not designed to afford employes a technical basis for avoidance of discipline." Petitioner also contends that the hearing was "conducted in a manner prejudicial to Claimant's rights and that the hearing officer was biased." Contrary to this contention, the record does not support such allegation. The hearing was conducted in a fair and imp
The essence of the factual basis for this entire dispute is contained in the following testimony of Yardmaster McCoy:
                        Docket Number CL-24105


        "On the date in question at 1:45 p.m. Mr. Costa came into my office to return some papers. I asked him then to copy a train order that I had to have for the 2:30 job he asked me then what my other clerk was doing. I told him then he was trying to get the list up to date, for him to copy the train order. He said no I am not going to copy the train order so I told him then to copy the train order, Then he said go flick yourself and give me the finger then I told him that I would get him a direct order to copy the train order. So then he told me I not going to do it because of the hours of service so then I said we'll see when the Trainmaster gets here. I then got on the radio and got ahold of Mobile 2 and asked him what his location was he said around south Hamilton be there in five minutes. Then when the Trainmaster arrived I told him what had happened an


The organization argues that Claimant was justified in refusing to copy the train order in view of his hours of service and further that the language used was common "shop talk". In short it is maintained that the Yardmaster was asking Claimant to perform an illegal act and his reaction was justified. The Organization also scores the alleged ignorance of the Yardmaster.

 Carrier notes that if there had been a violation of the Hours of Service Law, the penalty would have been leveled against Carrier and it was at risk. Carrier argues that Claimant's language and refusal to follow orders were both inexcusable and exceeded coon shop language. Carrier insists that if Claimant indeed had a complaint he should have followed his orders and grieved later.

 In spite of Claimant's testimony that he was not sure of the use of profanity, the testimony is clear from both the Yardmaster's and Brakeman Fugate's testimony that he did indeed use the profane and vulgar language and gestures, and that he refused to follow the order. He himself agreed that he did refuse the instruction in view of the hours of service problem. Thus, the question of guilt as determined by the hearing officer is clear and unequivocal. As the Board views it, there was no justification for Claimant's conduct and insubordination based on the h official Claimant should have known better. The discipline imposed cannot be construed to be arbitrary or capricious since similar conduct has been found to justify termination; there is no basis for this Board substituting its judgement for that of Carrier.

        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;

                        Award Nmber 24208 Page 3

                        Docket Number CL-24105


That the Carrier and the Employee involved in this dispute are respectively Carrier sad Employee within the meaning of the Railway Labor Act., as approved June 21,, 1934;

 That this Division oaf the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                          A W A R D


        Claim denied.


                          NATIONAL RAILROAD AWUSIMENT HOARD

                          By Order of Third Division


ATTEST: Acting Executive Secretary.
        National Railroad Adjustment Board


By
 Rosemarie Brasch · Administrative Assistant

 Dated at QSICagop Illinois,, this 14th day of March 1983.