BURLINGTON NORTHERN, INC. ~*
 ~* CASE N0. 6
 -and
 AWARD ~* AWARD NO. 6
 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES ~*
 *

 Public Law Board No. 2746 was established pursuant to the
 provisions of Public Law 89-456. The parties, Burlington North
 ern, Inc. (hereinafter the Carrier) and the Brotherhood of Main
 tenance of Way Employes (hereinafter the Orglnizationj are duly
 designated carrier and organization representatives as those
 terms are defined in Sections 1 and 3 of the Railway Labor Act.
 After hearing and upon the record, this Board finds that
 it has jurisdiction to resolve the following claim:
Sectionman (laborer) Jeffrey T. Schmidt now be returned to service, compensated for all time lost including overtime and straight -time and the dismissal be stricken from his record." Prior to his dismissal the Claimant was employed as a Sectionman at the Carrier's Northtown Yard, Minneapolis, Minnesota. On May 3, 1979 Claimant's gang wls changing out switch ties in Northtown Yard following a train derailment. At approximately 3:00 p.m. the Claimant's Aslistant Foreman instructed the Claimant to place a tie. The incident that followed resulted in the Claimant's dismissal from service for insubordination.

                                        Page Two

The Carrier asserts that testimony taken at an investigation held on May 11, 1979 established conclusively that the Claimant was insubordinate. While this Board finds that the Claimant was indeed insubordinate on May 3, 1979, it also finds that mitigating circumstances demand a less severe penalty.
 The testimony taken at the investigation is conflicting with respect to the question of whether the Claimant verbally .refused to place the tie. The record does reveal that the Claimant was told four times by his Assistant Foreman to place the tie. Those four requests came within a ten second time frame. The record conflicts regarding the phrasing of the instruction. The Assistant Foreman testified that he told the Claimant "to place that goddamn tie or (he) Iwould fire him; that was exact." The Claimant testified that his Assistant Foreman put it another way: "Put it in, putt it in, put that sonofabitch in or else go home." The Claimant alleged that he was stunned and confused by the abruptness d rapid-fire nature of the order. Whether the Claimant's description or his Assistant Foreman's is more accurate is not dispositive of this dispute. It is obvious, however, that the Assistant Foreman who was under extreme pressure to repair the track, acted less than properly in the circumstances. His attitude was quarrelsome almost to the point of being provocative. The Claimant testified that he was shocked after) he was given the instruction. He just stood there. Seeing this idleness, the
 PLB No. 2746 Case/Award No. 6 Page Three Assistant Foreman reacted by saying, "Put that tie in you son= ofabitch." When the Claimant didn't, he was told to drop his tongs and go home.
 It is apparent that neither the Claimant nor his Assistant Foreman acted with much discretion. Both were working under the pressure of a derailment, attempting to prevent further delays. The Foreman knew that a train was shortly approaching the track that was being repaired; he did not convey this to the crew. The record is unclear regarding who initiated the confrontation, however it is clear that the Claimant's actions were compounded by his Foreman's attitude.
 Recognizing that discipline must be reasonably related to the offense, and by no means condoning ins ordination, this Board finds that the Claimant should be reinstated without back pay. To this extent, the claim will be sustained.

 AWARD: The Claimant shall be reinstated ,jithout back pay.

 F. H. unk, C. Lane,
 Organization Member Carrier Member

                  Richard R. Kasher, Chairman and Neutral Member


July 6, 1981
 Saint Paul, Minnesota