Form 1 NATIONAL RAILROAD ADJUST=T BOARD Award No.
765
SECOND DIVISION Docket No.
7382
2
-WP-MA-'
78
The Second Division consisted of the regular members and in
addition Referee Robert .y. Franden when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dist7ute:
( Western Pacific Railroad Company
Dispute: Claim of Employes:
1. That Carrier violated Rule
36
of the controlling Agreement when on
October
9, 1975,
removed Machinist F. Z. Reyes (hereinafter
referred to as Claimant) from service pending investigation.
2.
That Carrier failed to substantiate its charge against Claimant of
alleged act of insubordination.
3.
That, accordingly, Carrier be ordered to compensate Claimant for
all wage loss from October
9, 1975
to October
24, 1975,
inclusive.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier ox carriers and the employe ox employes involved in this
dispute axe 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.
This is a discipline case. The claimant herein was assessed a 12 day
suspension based upon a finding of insubordination. Said finding was made
pursuant to a hearing held after proper notice.
The claimant alleges that there was insufficient evidence presented
at the hearing to substantiate the charge and that this was not a proper
case for suspension pending a hearing.
The facts in this case axe somewhat in dispute. On the date in
question, claimant was instructed to go to the west end of the yard to
inspect the switch engines. There is some confusion in the record as to
what was the nature of claimant's response, but i n any event, he went home
claiming illness. The record supports the carrier's contention that the
claimant resisted the order. During the day the claimant had been moved
Form 1
Page 2
Award No . 7465
Docket No. 7382
2-WP-MA-'78
around to several assignments and evidenced some uncertainty as to what he
was supposed to do and in what order. At the time he was given the order
to go to the West Yard he evidently told Foreman Garcia that he was sick and
sick of Foreman Garcia.
The record is somewhat contradictory as to whether the claimant had
permission to go home due to illness. On balance, it was not unreasonable
fox claimant to assume that inasmuch as he had been told to turn in his
card if he was going home sick that he had cleared his leaving.
Frankly the record does not clearly reflect claimant's guilt or innocence.
There is no question but that at the time in question there was some tension
between the claimant and Foreman Garcia. Whether that tension gave rise
to such insubordination so as to merit a 12 day suspension has not been
proved in our estimation of the record.
It is clear to this Board, however, that this was not a proper case
fox suspension pending a hearing. The claimant had a good record. There
has been nothing presented to this Board to substantiate Carrier's argument
that leaving claimant in service pending hearing could endanger the employe
or his fellow employes.
The record does not reflect that the Carrier has met its burden of
proof or acted properly in suspending the Claimant pending hearing.
We will sustain the claim.
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY ' ~..~/r
o emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 10th day of February, 1978.