Award No. 5541 Docket No. 5445 2-CR.I&P-CM-'68
The Second Division consisted of the regular members and in
addition Referee George S. Ives when award was rendered.
SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. 0. (Carmen)
EMPLOYES' STATEMENT OF FACTS: Carman Daniel Linzy, hereinafter referred to as the claimant, has been employed for sixteen years as a Carman by the Chicago, Rock Island and Pacific Railroad Company, hereinafter referred to as the Carrier at Chic-ago, Illinois.
On July 21, 1966 the claimant, in response to an appeal from Carrier Officers for employes to help secure additional help, brought an individual by the name of H. G. Gamble to the Carrier's 49th Street Coach Shop to seek employment. While Mr. Gamble was waiting in the Freight Car Shop with the claimant for the Assist. Master Mechanic to arrive at the Shop, Mr. Vanderburg, Shop Engineer, who was acting as Freight Shop Foreman on this day and the claimant became involved in a disagreement over the fact that Mr. Gamble was waiting in the Shop.
On September 1, 1966 an investigation was held charging the claimant "for your violation of Rule N of the General Rules as contained in Form G-147 revised, on July 21st, 1966 at 7:50 A. M. Day Light Saving Time while on duty at the 49th Street Shop" and a copy of the transcript is attached hereto as Exhibit A.
The claimant was discharged on September 9, 1966 for allegedly being insubordinate, a copy of the discharge notification is attached as Exhibit B.
This dispute has been handled with the highest designated officer of the Carrier, who has declined to adjust it. The Agreement dated October 16, 1948, as subsequently Amended, is controlling.
The procedural objections which are, if believed, of only slight substance tire not sufficient to warrant prejudicial error and a finding that claimant was not given proper notice or a fair hearing.
Insubordination is a most serious offense and cannot be condoned in any respect. Obedience and order in the workplace or shop must be maintained. Here -,,ve have an employe who twice before has engaged in such forbidden conduct and was shown leniency so that he might learn to do what is required under the Rules. However, claimant has failed to learn from his experience and despite his dutiful apoligizing for such action in the past he persists in such rebellious action towards his supervision.
An employe who does not want to remain in Carrier's employ and under its supervision ought not to be allowed to be reinstated or paid for time lost. Moreover, claimant's guilt as charged demanded his dismissal. Carrier's disciplinary action against claimant was proper. Therefore, your Board is respectfully requested to deny this claim.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction .over the dispute involved herein.
This is a discipline case. Claimant is a carman, who was charged with violation of Rule "N" of the Carrier's General Rules on July 21, 1966 at 7:50 A. M. while on ditty at Carrier's 49th Street Shop. Following an investigation the Claimant was dismissed from Carrier's service "* * 'e for being insubordinate in violation of Rule N of the General Rules as contained in Form G-147 Revised while on duty at 49th Street Shop on July 21.st, 1966." Petitioner contends that Carrier dismissed Claimant from service without proper notice of the precise charges against him, and that the investigation failed to meet the requirements of Rule 3-f of the controlling Agreement as to fairness and impartiality.
Carrier's defense is that the disputed notice specifically advised Claimant of the particular rule violated as well as the time and place when the events under inquiry occurred. Furthermore, Carrier contends that tile investigation was fair and impartial, and that Petitioner's other procedural objection do not warrant a finding of prejudicial error.
The notice received by Claimant specifically referred to Rule "N" of the General Rules, which provides as follows:
Although Rule "N" includes various offenses, including insubordination, the record reveals that Claimant was fully familiar with the particular facts or events under investigation as evidenced by his testimony and that of a wit-
ness called on his behalf at the hearing. Consequently, he was neither deceived or misled as to the nature of the charges against him and had ample opportunity to prepare his defense. (Third Division Awards 12255 and 12898.) Hence, we must conclude that the notice was sufficiently precise to meet the requirements of Rule 34 of the Agreement.
Analysis of other procedural objections raised by Petitioner while the dispute was considered on the property fails to disclose prejudicial error during the conduct of the investigation. Although certain witnesses read prepared statements at the hearing, Petitioner was allowed to cross-examine them and offer rebuttal evidence through witnesses called on his behalf.
Finally, Petitioner urges that Carrier has failed to establish that Claimant vas guilty of insubordination. The evidence is somewhat conflicting as to the exact verbal exchange between Claimant and Carrier's supervisor on July 21, 1966. Claimant denies telling the s _ipervisor to "shut up" and produced a witness to corroborate his testimony, whereas two fellow employes who witnessed the altercation corroborated the testimony of Carrier's supervisor as to Claimant's conduct. Despite such conflicting testimony, the weight of the evidence reveals that Claimant's demeanor was abusive, quarrelsome and disobedient, which cumulatively was sufficient to support Carrier's findings of insubordination.
In view of Claimant's previous violation of Rule "N" of the General Rules arising out of similar conduct, the punishment cannot be said to be arbitrary, capricious or unsupported by the record. Accordingly, we will not upset the punishment decided upon the Carrier.