Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6689
SECOND DIVISION Docket No.
6518
_The Second Division consisted of the regular members and in
addition Referee Irving T. Bergman when award was rendered.
( System Federation No. 21, Railway Employes'
( Department, A.F. of L. - C.I.O.
Parties to Dispute
: ( (Carmen)
( Southern Railway Company
Dispute: Claim of Employes
:
1. That under the current Agreement, Carman W. R. Baker,
Valdosta, Georgia was imporperly dismissed from service
from November 14, 1971 to December 1, 1972.
2. That accordingly, the Carrier be ordered to pay Carman W.
R. Baker, Valdosta, Georgia for all time lost from November
14, 1971 until December 1, 1972 and that he be allowed all
other benefits that he would have had if he remained in
service including benefits under the Travelers Insurance
s
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.
Claimant received training at Southern Technological Institute
at Carrier's expense, for employment as carman which started July
3,
1970. On November 14, 1971 while on duty 11 P.M. - 7:A.M., he was
observed by the General Foreman from 12:20 A:M. until 2 A.M. standing
by a stove and performing no work. When directed by the foreman to
perform certain work, he refused to do so and was then suspended
pending investigation.
Testimony at the investigation substantially supported these facts;
and was corroborated by a carman who was a witness. Claimant was dis-
,f
I'
''~ 1
Form 1 Award No. 6689
Page 2 Docket No.
6518
2-SOU-CM-'74
missed from service. In the handling on the property, it was agreed by
the Organization, claimant and Carrier, after conference, that claimant
would be restored to service with seniority unimpaired and with pay for
approximately one half of the time lost. Claimant at that time also
agreed to withdraw charges filed by him and pending at E.E.O.C.
Claimant thereafter refused the settlement of his claim unless he received
full back pay. The settlement offer was withdrawn but claimant was,
nevertheless, restored to service with seniority rights unimpaired but
with no back pay.
The Organization has contended that the Carrier violated the Pro
cedure in Dealing with Grievances Rule
34,
that the investigation was
not fairly conducted, that claimant was not guilty of insubordination
as charged, or in the alternative that the discipline was excessive.
At the conclusion of the hearing the claimant and his representa
tive were asked if the investigation had been conducted, "in a fair
and impartial manner and in accordance with your agreement?" Both
answered in the affirmative. We have read the record and find no
violation of the agreement in suspending the claimant. There was
substantial testimony submitted at the hearing to justify the result.
The discipline should be regarded as loss of pay only, since claimant
a
was restored to service.
This Board will not interfere with a decision where there was
' sufficient or substantial evidence of insubordination. The discipline
will not be disturbed because it was not arbitrary, capricious or unrea.
sonable. Carrier's offer of settlement was without prejudice to its
position and cannot be relied upon by claimant after he rejected it.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
Ros marie Brasch
- A
ministrative Assistant
Dated at Chicago, Illinois; this 7th day of May, 1974.