Form 1 NATSONAL RAILROAD ADJUSTMENT BOARD Award No. 7060
SECOND DIVISION Docket No. 6739
2-LI-MA-'76
The Second Division consisted of the regular members and in
addition Referee Nicholas H. Zumas when award was rendered.
( International Association of Machinists and
( Aerospace Workers - Local Lodge 754
Parties to Dispute:
r
( The Long Island Rail Road Company
Dispute: Claim of Employes:
That Machinist A. Johnson was unjustly dealt with under the
controlling agreement and thereby damaged. when he was deprived of
his employment on December 4, 1973, as a result of being removed
from the service of the Carrier on the alleged charge of "Insubordination".
That accordingly Machinist A. Johnson be compensated for all
time lost resulting from being held out of service on the alleged
charge of "Insubordination" and further, that he be made whole
for any and all benefit losses suffered as a result of Carrier's
action against him.
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 were given due notice of hearing thereon.
This claim involves a 30 day suspension for failing and refusing to
perform work after direct orders from the Foreman. Claimant asserts that the
method indicated by his superior as to how to perform the work imperiled
his safety. Claimant further asserts that he did not receive a direct order
from his superior - merely a suggestion as to how Claimant should perform the
work (with which Claimant disagreed.)
The Board is of the opinion that there was substantial evidence of
probative value that warranted the conclusion by Carrier that Claimant was
insubordinate, and we follow those prior awards that hold that where there
is such a showing, such conclusion shall not be disturbed.
Form 1
Page 2
Award No. 7060
Docket No. 6739
2-LI-MA-'76
However, there is also evidence in the record that Claimant had
a genuine fear for his safety if he were to perform the work as directed.
As was stated in Second Division Award No. 6547:
"Fear of safety is a motivating factor
strong enough to be given great weight
in assessing a penalty."
Under the unique circumstances and facts presented herein, the Board
finds that Claimants' discipline should be reduced from 30 days to ten days.
A W A R D
Claim disposed of per findings herein.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
Rosemarie Brasch - Administrative Assisi
Dated at Chicago, Illinois, this 21st day of May, 1976.