NORFOLK SOUTHERN RAILWAY COMPANY

Claim an behalf of D. Zalewska for reinstatement with seniority and ail other rights unimpaired and pay far all tuna lost as a result of his disamissat from service following a formal investigation on April 26,2002, for insubordination and failure to tallow instructions and being argumentative and belligerent, and threatening to claim a personal injury while assigned as a crlaclrine operator an TS-S3 on April 4, ZOd'?.

(Carrier File: ?t%IW-HARR-02-03-SG-Q67)

Upon the whole record and all the evidence, after hearing, the Board finds that the parties herein am carrier and employee within tine }meaning of the Railway Labor Act, as amended, and this board is duly constituted by agreerze=zt and has jurisdiction of the parties and subject matter.

This award is based on the facts and circumstances of this particular ease and shall not serve as a precedent in any other ease.

Carrier proved the charges by substantial evidence. The record established that on the data in question, Claimant, without jttatification, refused an artier to perform hisjob picking up spikes lying era the ballast, threatened to file an injury claim, and thereafter refused an ardor by the Track Supervisor to come dawn off his machine to discuss his refusal and acted belligerently, Although Claimant testified and denied or explained same of these actions, his testimony was not credited on tine property and, as an appellate body-, we defer to 'the credibility determinations made on the prcaperty.

However, based ore Claimant°s record during his thirteen years of service, the incidents of April -f, 200?, stand out as an aberration. In light of this, we find that the penalty of dzsazaissal was excessive and that Claimant should have a last chance to demonstrate that he can be a productive, cooperative

employee. Accordingly, we award that Claimant be reinstated to service, with seniority unimpaired, but ;without compensation for time held out of service.

M. II. Malin