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

Parties to said dispute were given due notice of hearing thereon.

The Claimant is a long term employee working since April 1971. On December 20, 2002, the Claimant held the position of B&B Foreman Mechanic. On that date, B&B Supervisor J. Day informed the Claimant that a beaver dam was partially obstructing a culvert and requested the Claimant and another employee to clear the culvert. A Form D (on-track protection) was necessary and Supervisor Day instructed the Claimant to obtain the form. However, as the Claimant testified, he refused to follow Supervisor Day's instruction:

"[A] The only thing I refused to do was to take a Form D which I felt was . . . I felt uncomfortable doing.

I refused to do it ......

Supervisor Day had to get another employee to take out the Form D, pick the Claimant up and remove the dam.

After an Investigation held on January 3 and by letter dated January 16, 2003, the Claimant was suspended five working days without pay and was disqualified as a Foreman Mechanic. This claim followed.

Substantial evidence supports the Carrier's determination that the Claimant engaged in misconduct. By the Claimant's own testimony, he was given an instruction to take out a Form D and he refused. That is insubordination and in violation of Rule GR-C ("Any act of insubordination, hostility, or willful disregard of the Company's interests will not be condoned . . . .").

The Claimant's assertion that he was not qualified to take out the Form D do not change the result. The Carrier asserts that the Claimant was Rules qualified to do so and, in any event, we do not see how the act of taking out the Form D in accord with his supervisor's instructions placed the Claimant in any immediate unsafe situation. If the Claimant disagreed with the instruction given to him, his

obligation was to obey the instruction and protest that instruction at a later time. The work site is not a debating society.

We do not find that a, five day suspension was arbitrary. Insubordination is serious misconduct - indeed, Rule GR-C specifies that insubordination is ". . . sufficient cause for dismissal." A five day suspension serves the purpose of sending the Claimant the message that he must follow his supervisors' instructions.

However, we do find that the added penalty of permanent disqualification from being a Foreman is excessive. The Claimant has now been unable to hold a Foreman's position for over two years. In our opinion, that is sufficient time to add to the message to the Claimant that he is required to follow his supervisor's instructions. Pending his passing the appropriate examinations, if any, the Claimant shall be allowed to re-qualify for the Foreman's position. See e.g., Third Division Award 36831 (". . . permanent disqualification is not warranted .. . .").

We considered the Organization's procedural arguments and find that they do not change the result.

AWARD