Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28791
 THIRD DIVISION Docket No. MS-28958
 91-3-89-3-361
 The Third Division consisted of the regular members and in
 addition Referee James E. Mason when award was rendered.

 (Richard A. White PARTIES TO DISPUTE:

STATEMENT OP CLAIM:

 "(1) The dismissal of Truck Driver R. A. White for alleged '. violation of "Rule D", insubordination (rules covering transportation).' on June 28, 1988 was without just and sufficient cause, arbitrary, capricious and on the basis of unproven charges and in violation of the Agreement.

 (2) The Carrier violated the Agreement when it refused to afford the Claimant his right of appeal as set forth in Section VI. 'Discipline', following a hearing which was
(3) As a consequence of the violations referred to in either Part (1) and/or Part (2) above, Mr. R. A. White shall be returned to his position with all seniority and benefits unimpaired and he shall be paid for all wage lose suffered."

 FINDINGS:
The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employee 'vfthin the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment'Board has jurisdiction over the dispute involved herein.


advised of the pendency of this dispute and filed __a Submission with the
 Division.
 Form 1 Award No. 28791
 Page 2 Docket No. MS-28958
 91-3-89-3-361
 Claimant had been a Chauffeur/Track Car operator on the Springfield
 Terminal Railway Company. He had not worked as such since November 13, 1987,
 due to a strike. On February 23, 1988, Claimant acquired a position in the
 Maintenance of Way Department of Amtrak. He was employed as such when, on
 June 28, 1988, a member of Carrier's Engineering Department contacted Claim
 ant's home by telephone and informed his wife that Claimant was being recalled
 to service. Here the record becomes convolved. The Carrier employee who made
 the call to Claimant's home testified that he did not know what time of day he
 called nor did he know what day he had Claimant scheduled for a return to duty
 physical examination. He stated "I believe around the 8th, I'm not sure."
 Claimant testified that the call to his home was received by his wife at about
 11:00 A.M. on June 28, 1988, and that the message given to his wife was to
 have Claimant report for a physical examination at 2:30 P.M. on that same
 date, June 28, 1988. The Carrier witness testified that Claimant called him
 back "later in the afternoon" (he didn't know exactly when and the record con
 tains no such information); Claimant allegedly used vulgar and obscene lan
 guage when talking to the Carrier witness (no such language is found in the
 hearing transcript); and, Claimant allegedly said that he was not going to
 report for a physical examination. Claimant when asked "... did you contact
 Mr. Beachy that day?", responded "No, I didn't". This issue was not further
 explored or clarified by the Hearing Officer.

 The confusion continues when the Carrier witness noted on his report that Claimant refused on June 28, 1988, to take a physical examination, whereupon the Engineer - Mai Rule D, insubordination, because of an alleged refusal to report for a return to duty physical examination. The hearing notice did not identify the date of the alleged insubordination, and "requested" that Claimant attend a hearing on July 14, 1988. The hearing was held as scheduled. Claimant was present and represented throughout the hearing. Neither Claimant nor his representative took any exception to the notice of hearing and both indicated a readiness to proceed with the hearing. Following the compil.et_ion of the hearing, Claimant was notified by letter dated August 14, 1988, as follows:




Form 1 Award No. 28791
 Page 3 Docket No. MS-28958
 91-3-89-3-361
 c) During that conversation you said you were not
 going to report for a physical.
 Therefore, as of this date you are terminated from
 the service of the Springfield Terminal Railway
 Company."

 On September 13, 1988, the same Maintenance of Way representative who had assisted Claimant during the investigatory hearing, addressed an appeal letter to Mr. R. E. Dinsmore, Director-Labor Relations. On September 22, 1988, Mr. L. T. Fay, Director Labor Relations-Maintenance/Administration acknowledged receipt of the September 13 letter and scheduled a conference on the appeal for September 28, 1988. The appeal conference was held as scheduled. When no timely response was received from the Carrier on the appeal conference, the Maintenance of Way representative, on December 21, 1988, again wrote to Director Labor Relations Din December 21, 1988, was acknowledged and replied to by the Vice President - Human Resources on January 3, 1989. In the reply the employee representative was informed - among other things - that Mr. Roland E. Dinsmore, Director Labor Relations was the highest appeals officer on the Carrier and, therefore, appeals should be handled with Mr. Dinsmore. Mr. Dinsmore never answered either of the letters which had been addressed to him. Finally, failing to reach any resolution of this matter on the property, Claimant filed this dispute with the Board for
At the outset of their presentation to this Board, Carrier challenged the jurisdiction of the Third Division to hear and decide this case inasmuch as employees of this Carrier are classified as "Railroaders" and do not fit the traditional craft or class of employees as defined in Circular No. 1 of this Board. Carrier argued that, if heard at all by this Board, the case should be heard and decided by the Fourth Division.

 Procedurally, Carrier argued that only the United Transportation Union has authority on this property to handle appeals from discipline. Therefore, Carrier contends, the property and should be dismissed by the Board because no appeal was initiated by the United Tran
Claimant, through representation by the Maintenance of Way organization, has contended that this cas



Form 1 Award No. 28791
 Page 4 Docket No. MS-28958
 91-3-89-3-361
 3. There was no timely decision made to assess discipline following
 the investigatory hearing;
 4. There was no decision rendered by Carrier following the appeals
 conference; and

These jurisdictional and procedural arguments have been considered in various forms and degrees and have been ruled on in Third Division Awards 28726, 28767. We need not repeat our opinions here. Those decisions are, by reference, made a part of this Award.

 This dispute will be disposed of on its merits. We find that the hearing transcript is woefully lacking in substantial, probative evidence to support a charge of insubordination. There is no reliable record to substantiate when the Claimant w contacted Carrier and allegedly refused to take the examination. There is no reliable record to explain why a charge of insubordination was made on July 5, 1988, if the examination was scheduled for July 8, 1988.

 On the basis of the relative convincing force of the testimony and evidence as found in this case, it is the decision of this Board that Claimant should be returned to the service of the Carrier with seniority unimpaired. If Claimant elects to return to Carrier's service, any wage loss which he may have suffered after July 14, 1988, will be offset by any and all earnings made by him in any and all employment in any capacity during the period from July 14, 1988 to the effective date of this Award. Claimant is responsible for providing complete outside earnings records to the Carrier.




                          By Order of Third Division


Attest:
        Nancy J. e r - Executive Secretary --


Dated at Chicago, Illinois, this 15th day of May 1991.