NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in

addition Referee Nicholas H. Zumas when award was rendered.

SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'

DEPARTMENT, AFL-CIO

(Carmen)

MISSOURI PACIFIC RAILROAD COMPANY

1. That Carman J. W. Stoffel and Carman L. A. Dougherty were unjustly given thirty (30) days' suspension from the service of the Missouri Pacific Railroad Company, Dupo, Illinois, and both employes were held out of service on November 26, 1967, and the remainder of the suspensions was from January 18, 1968 until February 16, 1968, on Carman Stoffel and Carman Dougherty returned to work on Wednesday, February 14, 1968-this was due to difference in rest days of these employes. Also, Carman J. W. Stoffel's birthday occurred Wednesday, February 7, 1968, and he was deprived of birthday holiday pay in the amount of eight hours (8') at the straight time rate due to this improper suspension.

2. That the Missorui Pacific Railroad Company be ordered to compensate Carmen J. W. Stoffel and L. A. Dougherty for all time lost due to their improper suspension from service, and also that Carman Stoffel be paid for his birthday holiday which occurred Wednesday, February 7, 1968.

lenient. Your board has refused to set aside the carrier's action unless it was found that the action was arbitrary, capricious, excessive or an abuse of managerial discretion. The employes have offered no proof that the suspension of the claimants for 30 days was excessive and the claim should be denied.

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.

Parties to said dispute waived right of appearance at hearing thereon.

Claimants were each suspended for 30 days for refusing to comply with instructions.

Claimants were regularly assigned carmen on an 11:00 P.M. to 7:00 A.M. shift. The record indicates that on the night in question, Claimants were instructed by their foreman to accompany him to inspect cars at Valley Junction. Because an unknown and unapprehended sniper shot an operator at Valley Junction the previous night, Claimants refused to go to Valley Junction unless they were given armed protection. In refusing Claimant's request for protection, Claimants testified that the foreman stated: "Missouri Pacific Railroad doesn't have to furnish you no (sic) protection."

Carrier's position, in the handling on the property, was summarized in a letter to the General Chairman from the Director of Labor Relations as follows:

"These claimants stand admittedly guilty of insubordination, the gravity of which generally warrants discipline as severe as outright discharge from the service. While they offered the excuse of fear of an unknown assailant, such an excuse does not justify a refusal to comply with instructions in the absence of visible present danger to loss of life or limb or great bodily injury. The evidence offered by the claimants fell far short of sufficient proof of the hazards of which they contend they were fearful." (Emphasis added.)

Thus, the Carrier takes the position that unless there is a "visible present danger to loss of life or limb or great bodily injury" any refusal to comply with instructions is tantamount to insubordination.

The Board cannot agree with this standard. There are many instances and situations, such as an unknown and unapprehended assailant whq_ shot a trainman in the area the night before, which could cause such ap-" prehension and fear in the mind of an employe as to justify either a refusal to go into the area or to demand armed protection. The subjective impulse on the part of the employe must, of course, be weighed with the objective circumstances of the situation as it existed at the time of refusal.

An analysis of the record in this dispute, including the testimony at the hearing, shows thatAhe Claimants wepe justified in their actions the night