(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The forty-five (45) days of suspension imposed upon Track Laborer C. Perkins for alleged insubordination on February 7, 1984 was without just and sufficient cause and on the basis of unproven charges (System File 1984-4).

 (2) The claimant's record shall be cleared of the charge leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: Claimant is a Track Laborer with a seniority date of
 April 17, 1972. On February 7, 1984, he was working at Madison Yard and was assigned to System Gang No. 6 when the incident precipitating the instant dispu
AccuLditig to the testimony of the Foreman, L. Guion, he observed members of the gang standing around and talking instead of performing their job of replacing rail. Guion stated that he instructed the men three times to get back to work. The third time, Claimant purportedly stated that what they could not do today, they would get done tomorrow. Guion responded that they were supposed to accomplish as much as possible that day, whereupon Claimant insisted that he did not want to be rushed; that he was a man, he could talk. Foreman Guion then explained that he was not trying to stop him from talking, but that if he could not work and talk at the same time, he should stop talking. According to Guion' to "stop . . ." with him. Claimant was thereafter removed from service, pending investigation.

 At the Hearing, held on February 15, 1984, Claimant denied pushing his Supervisor. He testified that Guion kept telling him to "shut up" and get to work when, according to Claimant's testimony, he was already working. Claimant stated that he tol
Three employes who were present at the time of the incident also testified at Hearing. Employes Hudson, Martin and Green all agreed at Hearing that Foreman Guion and the Claimant "got into it," arguing back and forth about whether or not Claimant was performing his job. Green testified that at one point, Foreman Guion stood right up against the Claimant and told him to get to work. At that point, Claimant turned around and bent over to start shoveling, when he bumped the Foreman. Green was unsure whether Claimant's action was intentional or not.
                        Docket Number MW-26427


Track Supervisor Boyer testified that he arrived at the scene about fifteen minutes later. He stated that Claimant denied pushing or shoving his Foreman and was rather belligerent about being removed from service.

 Following the Hearing, Claimant was assessed a forty-five day suspension for insubordination. Th evidence on this record to substantiate the insubordination charge. It further maintains that the di Board that in this case, Claimant's attitude demonstrated his total lack of regard for the authority of his immediate Supervisor. This type of misconduct will not be tolerated by the Carrier, and, accordingly, it requests that the Board deny this Claim.

 The Organization asserts that at no time did the Claimant refuse to perform his assignment. Moreover, there is no evidence that Claimant intended any discourtesy or disrespect toward his Foreman, nor is there proof that he bumped or shoved Foreman Guion. The Organization further emphasizes that Claimant's co-workers corroborate Claimant's testimony with regard to the incident. Therefore, the Organization concludes that Carrier has not proven its charges against the Claimant and has not demonstrated that the discipline assessed was warranted.

 Based on our review of the evidence adduced on this record, the Board is of the view that there is substantial evidence to support the Carrier's contention that Claimant's attitude and verbal remarks were inAllbordinate. It is well-est direct refusal to comply with instructions, but may also involve foul or abusive language, threats a 24732. This Claimant's remarks were clearly disrespectful and inappropriate in the workplace.

 The evidence is more equivocal, however, as to whether Claimant physically assaulted his Foreman. Claimant's co-workers corroborated Claimant's testimony that any p testimony presented, it appears that while there was a heated exchange between Foreman Guion and the Claimant, Claimant did not deliberately strike his Supervisor. Under these cir Given the nature of the offense actually proven, which appears to be a verbal altercation in which Claimant participated, we agree that some measure of discipline was justified, but will reduce the suspension to twenty (20) days.

        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 Number 26596 Page 3

                      Docket Number MW-26427


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Tabor Act as approved June 21, 1934;

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

        That the discipline was excessive.


                      A W A R D


        Claim sustained in accordance with the Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


          '7


Attest:
        Nancy JExecutive Secretary


Dated at Chicago, Illinois, this 27th day of October 1987.