Award No. 18
 Docket No. MW-DEC-76-33
 Parties Brotherhood of Maintenance of Way Employees
 to and
 Dispute Norfolk and Western Railway Company We$ECrr7 ReSiIorl
Statement 1. Carrier violated the effective Agreement dated December
 of 1, 1963, by unfairly and improperly refusing to pay
 Claim Claimant G. P. Lape for time lost for dismissal from
 service between November 17, 1976 and December 7, 1976.
 2. Claimant G. P. Lape shall be compensated for the time
 loss period November 17, 1976 through December 7, 1976.
 Also, that Claimant's seniority, rights and all other
 rights be returned unimpaired.
 Findings The Board, after hearing upon the whole record and all
 evidence, finds that the parties herein are Carrier and
 Employee within the meaning of the Railway Labor Act, as
 amended, that this Board is duly constituted by Agreement
 dated February 2, 1976, that it has jurisdiction of the
 parties and the subject matter, and that the parties were
 given due notice of the hearing held.
 Claimant was dismissed from service November 17, 1976.
 The General Chairman under date of November 18, 1976,
 wrote:
 "On behalf of Gary P. Lape, we are requesting
 a hearing as provided in Rule 20 of the effec
 tive agreement, who was dismissed from service
 on or about 1:15 p.m. on the day of November 17,
 1976. Please advise Gary P. Lape and myself
 of the future time and place of the hearing.
 Gary P. Lapels address is R. R. #2,' Brownstown, 111.
 62418."




rt. "You are to report to the Division Engineer's
 Office, 780 East Cerro Cordo Street, Decatur,
 Illinois at 1:30 PM on Tuesday, December 7,
 1976 relative to your alleged dismissal from
 service on or about 1:15 PM on November 17,
 1976.
 If you desire witnesses and/or representatives
 present, please arrange for their presence."
 Following the hearing Claimant was addressed the following:
 - "As a result of the formal investigation
 conducted at Decatur, Illinois on December 7,
 1976, it is deemed that you be returned to
 the services of the Norfolk & Western Railway
 Company, but that you not be compensated for
 time lost between November 17, 1976 through
 December 7, 1976."
 Claimant had been employed some seven months before the
 November 17 incident. The incident in question reflects
 that Claimant had returned from the bathroom about 1:15 PM,
 on November 17, 1976, at which time he encountered the
 Assistant to the Division Engineer, J. A. McBride, who
 according to Claimant "was jumping my foreman because
 - I wasn't to work".Apparently because Claimant was speaking
 in a loud voice Mr. McBride asked him to step, outside.
 During the course of their conversation Claimant gestured
 with his hand which Mr. McBride interpreted to be pointing
 _ his finger at him- and he told Claimant that he was relieved




` reported the matter to the General Chairman who requested







Page 4 was not that which is normally expected. Secondly, that while Claimant apparently did report to the Division Engineer he did nothing further. Finding the Division Engineer absent he made no effort to talk with the Division Engineer or to find out what his status was.

 On the other hand, the reaction of the Assistant to the Division Engineer sending Claimant to the Division Engineer certainly was not clear, Mr. McBride said that while he had the authority to dismiss Claimant that he was not dismissing the man but was.merely removing him from service. He admitted that Claimant was a good worker.

 Claimant denies that he was insubordinate. He does admit that maybe he talked loud that he gestured with his hands and that such gesture might be interpreted to be pointing his finger.

 Whatever the true facts of the situation. may tie, it is clear that there is fault on both sides. Consequently, we believe that the time involved should be split as between the parties. First, because the time for holding the investigation was within the control of the Carrier. Here, the investigation was requested on November 18th, thus if there were a delay that would be more the responsibility of the Carrier. They deemed it appropriate to put back almost immediately

                                      .Page 5

    ' a man who they had. alleged had been insubordinate. On

          the other hand the Claimant's conduct was such that he

          cannot be let free without some responsibility. We believe

          that it would be more appropriate to pay Claimant 12 of.

          the 20 days that he was withheld from service.

Award Claim .disposed of as per findings.
 Order Carrier is directed to make this Award effective within
 thirty (30) days of date of issuance shown below.
 zstie, Employee u-m er E. . N. J&e!ods, Carrier Member
 `J' -Arthur r. Van Wart, Chairman
 and Neutral Member

 Issued at Salem, New Jersey, April 4, 1980.