NATIONAL RAILROAD ADJUSTMENT BOARD
The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION No. 154, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. 0. (Carmen)
THE ALTON & SOUTHERN RAILWAY COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That under the current agreement Carman Paul Larsen and
George Brindley were improperly suspended October 1, 1968 through
October 10, 1968.
2. That accordingly, the Carrier be ordered to compensate Carman Larsen for forty-two (42) hours and forty-five (45) minutes, and
compensate Carman Brindley for fifty (50) hours and forty-five (45)
minutes.
EMPLOYES' STATEMENT OF FACTS: A short time prior to August 1,
1968, the Alton and Southern Railway Company, hereinafter referred to as
the carrier, initiated a program to add three tracks to its gravity fed classification yard. In so doing, tracks 007, 008 and 009 were raised to grade which
amounted to a maximum of four feet. Before the ballast was regulated this
created an extremely hazardous place to inspect and work cars or trains.
On or about August 1, 1968, Local Chairman Cox and Vice-Chairman O'Dell
confronted General Car Foreman W. N. Larson about the complaints of the
men of the unsafe condition working these tracks. After checking into the
complaints and handling with transportation officials, Mr. Larson notified
Local Chairman Cox that carmen would not be required to work cars and
trains on tracks 007, 008 and 009. Subsequent to that date, trains that entered
the yard on these tracks were moved to other tracks before carmen worked
them.
However, at about 2:00 A. M., on October 1, 1968, a train entered the yard
on track 007. The carmen on the 11:59 P. M. to 7:59 A. M. shift refused to
work it there. This matter was called to the attention of General Foreman
Larson at the beginning of the day shift, 7:59 A. M. At about 12:00 noon on
that day, Carmen Paul Larsen and George Brindley, hereinafter referred to
as the claimants, were instructed by Car Foreman J. Grimcnt to work the
train on track 007. They refused to do so due to the unsafe condition exist-
action of the carrier's supervisory officer in suspending the employe .pending
an investigation where the employe is charged with insubordination.
In the instant claim, both car inspectors were suspended pending an investigation for failure to comply with instructions of Car Foreman Grimont to
bleed off a cut of cars in Track 007. Claimants were given a fair and impartial
investigation. On the basis of the testimony developed at the hearing, claimants
were found guilty of insubordination. Discipline was assessed in the form of
suspension during the period pending investigation and decision following the
investigation, a period of five days for Claimant Larsen and six days for
Claimant Brindley. This is indeed extremely lenient in the face of the seriousness of the offense. The discipline certainly is not harsh or excessive.
As stated in Award 4672:
"If employes may refuse to obey orders with impunity such a
course of action would be destructive of discipline. A railroad cannot
be run efficiently if its employes can refuse to obey orders given them
by their superiors."
The discipline administered in this case was necessary to the successful operation of the railroad. There is no basis for your board overturning the action
of those responsible for the successful operation of the railroad. 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.
Sometime prior to August 1, 1968, Carrier started a program to add three
tracks to its Classification Yard. In so doing, tracks 007, 008 and 009 were
raised to grade amounting to a maximum of four feet. The Organization contends that before the ballast was regulated, this created an extremely .hazardous
place to inspect and work cars and trains.
On or about August 1, 1968, the Local Chairman and Vice-Chairman discussed with the General Car Foreman Larson the complaints of the employes
relative to what they regarded as unsafe working conditions on tracks 007, 008
and 009. The General Car Foreman subsequently notified the Local Chairman
that Carmen would not be required to work cars and trains on these tracks.
At approximately 2:00 A. M., on October 1, 1968, a train entered the yard
on track 007. The Carmen on the 11:59 P.M. to 7:59 A. M. shift refused to
work the train on track 007. This was called to the attention of the General
Car Foreman at the beginning of the 7:59 A. M. shift. At about 12:00 Noon on
that day, the Claimants were instructed by Car Foreman Grimont to work the
train on track 007. They refused on the grounds that the working conditions
were unsafe. Mr. Grimont reported this fact to the General Car Foreman, who
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had previously told the General Chairman that the employes would. not be
required to work these tracks because of unsafe conditions. The General Car
Foreman told Mr. Grimont to send the Claimants home, which be did. An
investigation was held the result of which.was that they were found guilty of
insubordination. Pending investigation, they had been suspended with consequent
loss of hours worked, and it is for the loss of time that the claim has been
submitted.
A review of the transcript of hearing reveals the following testimony:
"Questions by Mr. Cox.
Q. Mr. Grimont, what time did this cut come in about?
A. It came in at approximately 2:00 A. M. that morning.
Q. Was you notified that at midnight the third shift men would
refuse to bleed 007 off account of it was unsafe to work?
A. Yes.
Q. What action did you take when you started work that morning at 7:59 ?
A. I called Mr. Larson and informed him that there was a cut
in 007. He informed me that he would take care of it.
Q. Do you recollect other instances they have pulled cars out of
007 and put in other tracks to be inspected and bled off?
A. This has been done but not when I was on duty.
x: ~
Q. In your opinion, Mr. Grimont, do you think 007 is a safe track
to work on in inspecting and bleeding off?
A. No.
Questions by Mr. Larson.
Q. Mr. Grimont, you previously stated Track 007 is not a safe
place to work-how would you appraise it, in your opinion, as to its
workability ?
A. It could be worked but it is a hazardous condition.
Questions of Mr. O'Dell by Mr. Cox:
Q. Mr. O'Dell, approximately August 1, did you and myself confront Mr. Larson, General Car Foreman, about the conditions in 007
and 008 and Mr. Larson in turn told us that he'd see Mr. Griffin and
Mr. Griffin said they wouldn't put any more cuts in them tracks until
these tracks were straightened out and safe to work in?
A. Yes we did.
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Q. And to your knowledge they have pulled cuts out of them
tracks and put them in other tracks to be bled off and inspected
because of the unsafe condition in 007 and 008?
A. Yes.
Q. Mr. Milkert, what is your position with the A & S Railway?
A. Superintendent of Equipment.
Q. Have you made an inspection of track 007 and area recently?
A. Yes sir.
Q. How would you appraise it as to its workability?
A. The track would be somewhat difficult but not impossible to
work provided safe measures were taken with the realization that
the ballast was not as smooth as we would like to have it and the
difference in elevation between tracks 007 and 006.
:k :k :k k
Questions by Mr. Cox.
Q. Mr. Larsen, why did you refuse to bleed 00 7 ?
A. Because I did not wish to place myself in an unsafe position.
Q. Mr. Larsen, did you notify me of the unsafe condition, say
two months ago approximately?
A. Yes.
Q. And what was the answer I gave you two days later?
A. You told me that Mr. Larson told you and Bill O'Dell, due
to the fact that track 00 7 was unsafe to perform our duties, we did
not have to bleed the track off.
Questions by Mr. Cox.
Q. Mr. Brindley, why did you refuse to bleed 007 ?
A. I refused to place myself in an unsafe position performing
my work.
Q. Mr. Brindley, did you also notify me of the unsafe condition
in 007 a couple months ago?
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A. That is right.
Q. For the records, what did I say to you a few days later?
A. Mr. Cox informed me that Mr. Larson said that we wouldn't
have to work in 007 and 008 due to the unsafe conditions.
Q. Mr. Brindley, did you have a close call working 007 at one
time or another?
A. Yes sir.
Q. In your words could you tell me how this happened?
A. As I was working 007 there was a cut in 006 and it was
being shoved to the Hump, and there was loose banding protruding
from car doors and I had a difficult time pulling myself in the clear
by grabbing a hold of cars on 007 due to loose ballast on 007, and this
incident was reported to Mr. Ross.
Questions by Mr. Larson.
Q. Mr. Larsen, according to Mr. Grimont the track was bled the
afternoon of October 1-wouldn't that indicate the area was still
workable?
A. No Sir.
Q. Did you realize that in refusing to do a job as ordered by a
supervisor, or Car Foreman, that you were being insubordinate?
A. Under the cicumstances, no.
Q. Would you clarify that answer given in the last question?
A. Under the circumstances that I just quoted in the previous
question, Mr. Larson issued a verbal statement prior to this date,
October 1st, 1968, that we didn't have to work in tracks 007 and 008
until this unsafe condition was straightened out.
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Questions by Mr. Cox.
Q. Mr. Larson, approximately on Sunday September 1 or Sunday
September 8, they pulled a cut in 007. Could you tell me what happened that day?
A. On that particular date you're referring to, they brought a
cut in 007. I asked the General Yardmaster Ed Ross if he could take
and pull that train in another track because of the unsafe conditions
in 007. He siad `No'-that he would not tie up a 70 car track for 30
or 35 cars. At that time Mr. Cox was in the yards working and he
informed Mr. Ed Ross that Mr. Larson said we would not have to
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work 007 and Mr. Ross pulled that cut of cars out of that track and
put it in another track so that we could work it"
From a review of the testimony received at the investigation, and more
particularly from a review of the above excerpted testimony, we believe that
Carrier's action in this case was arbitrary. General Car Foreman Larson had
told the General Chairman and Vice Chairman that the tracks need not be l
worked because of admittedly unsafe conditions and with few exceptions, these '
tracks were not worked for a period of sixty days. The Car Foreman, who
issued this order admitted that the area was unsafe. In view of all the circum
stances and facts of record, we will sustain the claim.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: E. A. Killeen
Executive Secretary
Dated at Chicago, Illinois, this 13th day of November 1970.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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