Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7572
SECOND DIVISIOi7 Docket No. 7156
2-A&S-CM-' 78

The Second Division consisted of the regular members and in addition Referee Walter C. Wallace when award was rendered.

. ( System Federation No. 2, Railway Employes'

( Department, A. F. of L. - C. I. 0.

Parties to Dispute: (Carmen)

( Alton and Southern Railway Company

Dispute: Claim of Em1loyes:

1. That Carman Robert French was improperly suspended April 2, 1976, and subsequently dismissed from service.

2. That accordingly, the Carrier be ordered to restore Carman French to service with all seniority rights, vacation rights, sic:: leave benefits, and. all other benefits that are a condition of employment, compensation for all time lost plus 6% annual interest and reimbursement for all losses sustained account of loss of coverage under Health and Welfare and Life Insurance Agresnent while held out of service.

Findings

The Second Division of the Adjustment Board, upon the whole record and all the evidence, fines 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 was a Carman at Carrier's East Saint Louis, I11. , yard. On April 1, 1976, shortly after he reported for work at 11 P, M. on his third trick assignment, Claimant was removed from service pending a hearing by his Foreman on the grounds that he refused to perform certain carman duties assigned him at approximately 1.1:15 P.M. After the hearing Claimant was discharged.

We have carefully reviewed the record in this case and have concluded

that Carrier has not established, by substantial evidence, a sho;-rinc; of
failure to comply with instructions of Claimant's foreman. First, the
record does show that prior to this niEht, C1 arrant had apparently questioned
some of the instructions given him by his foreman to work certain less
Form 1 Award No.7572
Page 2 Docket No. 74-56
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desirable tracks on the basis that there were purportedly more junior carmen available to perform this work. While we again caution employes of all. railroads that the rule of the industry is "obey now and grieve later," we are unable to conclude here that Claimant precipitated and then actually failed to follow his foreman's instructions. The record does show that when Claimant first came on duty, he questioned his Foreman about what ,,cork he should perform, and his foreman did not answer his question. Shortly thereafter, his foreman instructed him to walk,, and work, Tracks 130 and 132, at which time Claimant asked the Foreman, as he walked out the door, to "wait a minute". There.zpon, the Foreman began to lose his temper, and in an enraged voice, shouted to the Claimant that he could "...either work the tracks or go home."

Importantly, the testimony of all the principles and. witnesses to this

confrontation -is substantively consistent to the extent -that when this
occurred, the Foreman continued speaking to the Claimant in an enraged
and argumentative tone about his responsibilities as a Caamian and never
gave the Claimant an opportunity to either obey or disobey his instructions,
nor to speak in response to the F orman. Significantly, other witnesses
consistently testified th.°:.t the Fore:~uan dominated the conversation so much
that Claimant did not have an opportunity to int erru.,pt his For eman. i-; ithin
seconds after the Foxerian completed his speech to Claimant, he told tile
Claimant he zras pull:i_n:- him out of service. Of flzr"ther axrportance is that
testimony of others vras consistent that Claimant did not refuse to perform
the work assigned, ,the true that he hesitated for a minute to question
his Foreman. Testimony of Claimant, and his fellos;T employos was also
consistent that the 171oreman, who carried a. loaded firearm. had lost this
temper and there was some fear that his highly emotional condition might
cause him to do somethiA_ which would ent,ng er Claimants and others' lives.
Based upon our review oz the testL:iony of everyone involved, even the
Foreman, we cannot conclude that such a fear Haas -imagined. Under these
circumstances, we thili~i that Claim-,n-t acted prudently by not attempting -to
continue the argument with the Foreman.

Essentially, the Foreman acted harshly and irrationally on the basis that he arktic:ipated Claimant would not carry out his instructions. But his actions prevented the anticipated act of non co:lrpliance to become a possible reality. In recent Award '(382 (t,,,arx), we held:

"ExFLmination of *the record shows -that -this is not a case of

insubordination, which involves, according to We bster's Third

_Intern_ationa_Z Dictionary, 'Disobedi-ence of orders, infractions

of rules, or a generally disaffected attitude toy-.!<lrd authol-ity.'

Caldvell's corzrlent was r,ade either -to tt<le forel.nan or to a

fellow employe -- even the foreman could not say for certain.

CaldT,rell fo:llo:red orders and ~aroceed<ed to the n-; work area

as assigned. Tha,.t he was found only -ten minutes after the

initial conversation in the new area but still not working

can hardly be considered a refusal to uork -- especially

Form 1 Award No.7572
Page 3 Docket No. 7456
2-A&S-CM-t 7B
"since he had not been told which specific work to undertake.
At best, this is a case of anticipated insurbord:ination. What
is required, at minimum, nos a direct order by the foreman at
the new working area to determine whether the employe was,
indeed, insubordinate. Up to this point, he had cum-plied with
orders.
With slightly different but nevertheless parallel circumstances,
Referee Norris found in Award No. 20919 (Third Division):
'We do not disagree with Carrier's contention that
insubordination is a serious matter often justifying
the discipline of dismissal. Nor, do we take issue
with the cited precedents in support of this poinciple.
Conversely, hog=ever, it is also well es-tabli0. hed
principle that the burden of proof tests upon Carrier
in discipline cases. The precedents on the: latter
issue are legion and need hardly be cited.

On the merits, therefore, and based on the record evidence, we are not persuaded that Carrier sustained its burden of proof on the charge of insubordination. Insubordination is defined as deliberate and inexcusable failure or refusal to obey a proper order of a superior.

Obviously, a::ere temporary delay i n compliance due to

i other work involvement does not constitute insubordina-

tion; nor does the fact that protest was made there

after. This is the sum total of what was involved in

this dispute.'

The only difference here is that, instead of 'temporary delay', there was a statement, perhaps or perhaps not directed at the foreman, concerning intention not to perform the work. Certainly it zras not direct, unequivocal refusal, nor can it be found that Caldwell actually failed -to do the work once it was assigned to him."

While the foregoing, standing alone, provides us with a?ple authority to set aside Carrier' s discharge of Claimant, we should also caution supervision that if it T-a shes to make a case for insubordination, it should not give an employe the option of perfoxmin,the assigned duties or ,to go home. Rather, it should be made clear to ennployes, in a civilized and. firm manner, that failure -to perform assigned duties could be grounds for insubordination and severe discipline and also, immediate removal fro. service pending a hearing.
Form 1 Award No. 7)72
Page It Docket ado. 7456
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Accordingly, we conclude that Claimant's discharge should be set aside and that he should be reinstated vith seniority unimpaired and compensated for all time lost as a result of this discharge, less all wages received by h:im from other sources and all money benefits received under the provisions of an,T Federal or Mate law which p;rovidcs fox unemployment insurance. The deduction of outside earnings and other sources of income is in keeping vvrith the fixed ~.n;s of recent Award 722, between `here same parties, and on the basis of this authority, we lihc.,wise find no support for the claim for 6;o i.n%erest and no su11yzort for tree claim reduestin reimbursement of 4.nuu rant a payments and other so-called fringe benefits that may have been lost duriq; the .period Claimant :t s improperly held out of service.

A W A R -D

Claim sustained as set forth in the findings.

M--T0I'dPL RULROAJ) ADJUCTT·hN'T BOARD

By Order of Second Division

Attest: Executive Secretes"l;,Y
National Rai`! road Adjustmen t Board

By '_ -^c._,;> _;, ; ~. ~= T_ _ -:_.~ e ..--- _ ~.._
J~---F:O car- r7_e Biwsch -- Adnl:i.!.1_S-i;ra'tive Assist-arit

Dated at Chicago, Illinois, this 23rd day of June, 1978.