waiver of the contentions of the erployes as to other si--uiar claims or grievances. It is understood, however, that the parties ray, by agreement, at any stage of the handling of a claim or grievance on the property, extend the sixty-day period for either a decision or appeal, up to and including the highest officer of the Carrier designated for that purpose.

(c) The requirements outlined in Paragraphs (a) and (b1, pertaining to appeal by the employe and decision by the Carrier, shall govern in appeals taken to each succeeding officer, except in cases·of appeal from the decision of the highest officer designated by the Carrier to handle such disputes. A1.1 claims or grievances involved in a decision by the highest designated officer shall be barred unless within nine months from the date of said officer's decision proceedings are instituted by the employe or his duly authorized representative before the appropriate division of the National Railroad Adjustment Board or a system, group or regional board of adjustment that has been agreed to by the parties hereto as provided in Section 3 Second of the Railway Labor Act, It is understocd, however, that the parties may by agreemc_nt in any particular case extent this nine months' period herein referred to.

(d) A claim may be filed at any tine for an alleged continuing violation of any agreement and all rights of the claimant or claimants involved thereby shall, under this rule, be fully protected by the filing of one claim or grievance based thereon as long as such alleged violation, if found to be such, continues. llaaever, no monetary claim shall be allowed retroactively for more than sixty days prior to the filing thereof. With respect to claims and grievances involving an employe held out of service in discipline cases, the original notice of request for reinstatement with pay for time lost shall be sufficient.

(e) This rule is not intended to deny the right of the Organization party hereto to file and prosecute claims and grievances for and on behalf of the employes it represents.

(f) This rule is not intended to deny the right of the enployes to use any other lawful action for the settlement of claims or grievances provided such action is instituted within nine months of the date of tine decision of the highest officer of the Carrier. (g) This rule shall not apply to requests for leniency."

out all proper tu;L? lawful in_tivczirn::; of sa:pervis<~rrs. Org.--uuzatic:: clearly ackna.;tedges that the record discloses Clau^.aiit's reaciadmittance to their refusal to operate the Arizer machine. Organizaticr stresses that Claimants were acting tinder an imminent rear for their health and safety if they would kfiave been required to operate the Adzer machine, since all three Claimants clearly indicate, and the record so supports, previous injuries resulting from the operation of that type of machine. Organization contends that to have requested the men to operate said machine is a violation of Carrier's cum Safety Rules, to wit - Rule 1 in the Carrier's Safety Rule Book, which i.n pertinent part reads:

Organization contends that it would be violative of the essential principle of the safety mandates to require a man who is in fear of reinjury to operate an Adzer machine because of its alleged propensity to inflict injuries on the operator.

In support thercof Organization offers the decision of Public Law Board No. 1844, resulting in Award No. 6 (Eischen), which, Organization contends, dealt with an exception to the mandate that all employees are required to carry out the reasonable and proper orders of their immediate supervisors. That claim involved a refusal of the Claimant therein to operate a company truck over a portion of a state highway because the Claimant did not hold the appropriate chauffeur's license. The Board, in assessing the merits of that claim, discussed the two

The record before us discloses that on March 17, 1980 Claimants were part of a continuous weld rail gang which had just begun a start up operation at Salem, Virginia. The supervisor in charge sequentially requested the three Claimants herein to operate the Pfizer machine. A.11 three Claimants had prior experience on the machine, all three Claimants had prior injury on the machine.

The machine in question was a "new", rebuilt, repowered Adzer machine in an "as new" condition. The supervisor in question testified that the machine had never been worked, had been =crated right at the job site, that all the safety devices on the machine were intact and in operating condition, that the proper foot protection and leg protection devices were readily available and used by the subsequent operators, that dust masks and goggles were readily available, that hard hats were available, and that the subsequent operators never did receive any reportable injuries from the handling of the Adzer machine.

Supervisor Carbaugh testified that tie leg guards available for the protection of the operator consisted of a metal shin guard-type of

Supervisor Carbaugh testified that he subsequently learned that the reason that all tree men refused to operate the machine was that all of them had previously received injury, and feared reinjury if they were required to operate the Adzer.

The Claimants testified that in the operation of the Adzer machine, which consisted of a planing or "scraping" of the ties to even the surface to receive new tie-plates, it is often the case that rocks and old pieces of spikes or "deadheads", are hurled out at high speed frcm underneath the Pfizer bits which often times result in injury to the feet or legs of the operator, despite the wearing of protective gear, which all three men believed to be inadequate.

Claimant Scherer testified that some tin-e in August of 1977 he experienced the same or similar problem with Supervisor Carbaugh concerning the operation of the Pfizer machine and that he had not been required to operate the machine since his injury in August of 1977. Claimant Caudill and Claimant Beck both testified that as a result of the previous injuries which resulted in one case in an off-titre for

Each readily admitted that they had refused to operate the machine, testifying that they were afforded scant opportunity by Supervisor Carbaugh to explain why they refused.

Supervisor Carbaugh acknowledged that he had a prior "understanding" with Claimant Scherer. That "understanding" was anplified at the hearing before this Board when the Local Chairman advised, without exception or objection from Carrier, that he (the Local Chairman) and Claimant Scherer, after Claimant's injury which resulted in a two and a half month lay-off while recuperating from his injuries, approached Supervisor Carbaugh and reached an understanding that Claimant would not be required to operate the Adzer machine because of the serious, potentially crippling injury which could result if Claimant reinjured his foot.

Carrier, in seeking to sustain its position and uphold the discipline stressed that Claimants herein . readily admitted their insubordinate act in refusing to operate the machine. Carrier contends that Claimants have failed to carry the burden to establish a record that would support the recognized exception to the requirement to carry cut proper and lawful orders. In support thereof Carrier cites Second Division Award No. 8520 (Vernon), which held in pertinent part:

"Me general arbitral rule regarding insubordination cases is that employees are bawd to "obey now and grieve later", even if instructions are believed to be contrary to the contract. There is one exception to the "obey now, grieve later" rule. This might be referred to as the "safety exception". it has been previously held that an employee need not comply with

orders that are without sufficient regard to the employee's safety as to imperil their life or limb. However, the safety

Page 9 Award LZ. 59 -(a3a

exception cannot be invoked in all situations where compliance

with an order would be hazardous to life or ME. It nest be

recognized that hazard and risk are inherent as a matter of

business necessity in many jobs. In cases where risk and

hazard are inherent in an employee's position, the safety

exception can only be successfullv invoked and when the

ca~any's order was unreasonablv careless and aims take

into consideration necess precautions to limit the inherent

ger to a sufficient and reasonable degree. Also, it hasbeen held when the organization invokes the safety exception, the burden is on them to shag that lack of safety was the real reason at the time of refusal. Inasmuch as it was clearly established that c~ing tamers and the inherent danger involved was part of the claimants' normal duties, the burden is on the organization to show a disregard on the company's part for the necessary safety precautions when they issued the order to climb the light tower.

**at"

(Emphasis added)