PARTIES The Brotherhood of Maintenance-of Way Employes
 TO and
 DISPUTE The Los Angeles Junction Railway Company

 STATEMENT 1. That the Carriers decision to remove Los
 OF CLAIM Angeles Junction Railway CompanyTrack
 Foreman B. L. Brooks from service, was un
 just.
 2. That the carrier now reinstate Claimant
 Brooks with seniority, vacation, all bene
 fit rights unimpaired, and pay for all -
 wage loss as a result of the investigation
 held July 24, 1986, continuing forward and/
 or otherwise made, because the carrier did
 not introduce substantial,, creditable evi
 dence that proved that the Claimant violat
 ed the rules enumerated in the decision,
 and even if Claimant violated the rules
 enumerated in thhe decision, permanent re
 moval from service, is extreme and harsh
 discipline under the circumstances.
 FINDINGS

 This Board, upon the whole record and all of the evidence, finds-that the parties herein are the Carrier and the Employees within - the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by Agreement dated November 26, 1985, and has jurisdiction over the parties and the subject matter.

                                            Yea/ _~


                          -2-


Claimant was employed as a Track Foreman, and had seven years service with the carrier. On July 8, 1986, Superintendent Smith and Claimant had a verbal altercation, which resulted in a formal investigation, which was held on July 24, 1986. The Claimant was charged with disrespectful and insubordinate conduct, and refusal to obey a direct order from the Superintendent, in violation of certain Carrier rules. Claimant was found guilty as charged, and was dismissed from the service.


Thhe Organization objected to the fairness of the Investigation, because the Hearing officer was a subordinate of the Superintendent, and, therefore, could not be fair and impartial. Railroad disciplinary hearings are administrative proceedings, and they are governed by Company policy, except to the extent that there are limitations in the collective bargaining agreement between the parties. There is no contractural limitation on the selection of the Hearing officer, so it was permissible for Mr. Edwards to serve. Whether he, as a subordinate of the Superintendent, can be fair and impartial, is for the record to show. In this case, there is nothing in the record which demonstrates bias or unfairness and, therefore, we will deny the objection.

                                          PLB N0. 4021

                                          AWARD N0. 28

                                          CASE N0. 34


                          -3-


With respect to the merits of the case, the facts are clear and, for the most part, undisputed by the parties. According to the record, Superintendent Smith approached Claimant Brooks outside the yard ofice on the Morning of July 8, 1986, and began to speak with him with regard to use of the radio, and reporting messages. Several members of Claimant's gang were in the vicinity and the Claimant asked if they could go to the yard to have the conversation. The Superintendent said "no", and continued to address the matter.


The Claimant became angry, and attempted to walk away from the Superintendent. (There is some testimony that Claimant shook his finger or fist at the Superintendent). While walking away, the Claimant said that the Superintendent "didn't have to treat him and yell at him and talk to him as a four year old and chastise him in front of everybody."


The Superintendent followed the Claimant around a nearby fence, and continued to engage the Claimant in conversation. Claimant refused, and said that he did not have to talk to the Superinten-

7'o-
    -j -,~


dent, and other similar statements. The Superintendent stopped--
 the Claimant, ordered him to stand and talk,, or be subject to an
 investigation. Claimant refused to comply, and the charges were-
 filed.

 There is conflicting testimony with respect to the volume used by the Superintendent and the Claimant in the exchange. According to their own testimony, each spoke in polite tones, while the-other raged. The uninvolved witnesses added little to clarify the conflict.

 Claimant admitted that he walked away from the Superintendent,
 and that he refused to stop when ordered to do so. He also ad
 mitted that he knew the Superintendent, and was familiar with the
 rules. His only defense is that the Superintendent was being ab
 usive, in public, and that he was trying to avoid a more serious
 confrontation. He further acknowledges that he was in no physic- -
 al danger. The following exchange, from pages 14 and 15 of the -
 transcript, is of particular interest:
                                          PLB N0. 4021

                                          AWARD N0. 28

                                          CASE N0. 34


                          -5-


        Q. If you thought that Mr. Smith was being abusive to you, could you not have listened to what he had to say and, if unreasonable, file a protest under your labor agreement rather than taking the course as alleged?

      A. I don't know.


        Q. But you are aware of the opportunities to file a protest against the company or against one of its . . . .?

      A. Yes, I am aware, yes.


That is exactly the point, and it is the only appropriate remedy available to the Claimant under circumstances such as these. Unless there is a clear threat of bodily harm, employees must comply with orders, and grieve later. The foregoing principle has been so frequently endorsed by this and other Boards, that it requires no citation. Therefore, Claimant is guilty as charged, and discipline is appropriate.


Insubordination is a most serious offense, which often has been found sufficient grounds for termination, even in the case of a

"first offense." However, the circumstances in this case are unusual. One of the witnesses, Mr. Body, made the following statement at the conclusion of the investigation:

          I think Mr. Smith and Mr. Brooks both handled it real, it was a real nasty situation, and I think Mr. Smith was right in a sense that he

        wanted Mr. Brooks to know what he wanted done -_

        because he is the Superintendent, he does hold

        the title. I think Mr. Brooks was wrong for

        walking away from Mr. Smith, but I also think

        Mr. Smith was wrong for not going to the side

        and telling Brooks this is what was going on,

        because there was more than just Los Angeles

        Junction employes out there that morning of

        this incident. So, just my own personal, I

        think both were wrong the way they handled the

        situation. _It was really blown _out of propor

        tion.


The Board agrees with Mr. Body. The claimant is obliged to fol--low and attend to the instructions of his superiors - whether or not they are given politely. However, the Claimant's offense must be viewed in the context in which it occurred. In this case-the Claimant erred, but his error was somewhat mitigated by the actions of the Superintendent. In view of this fact, and the fact that the Claimant had seven years service with a clear
 PLB N0. 4021 AWARD N0. 28 CASE N0. 34

 record, we will reduce the penalty to a ninety day suspension.

 AWARD
The discharge is set aside, and the discipline is reduced to a
 ninety day suspension from service, without pay.

 C. F. Foose, Employee Member L. L. Pope, Carrier Member

                    oh son, Chairman

                    nd a tral Member


Dated: