Foam 1 HATIOiVU RAILROAD ADaILTS`liI4,GivT BOARD Awar d No.
7717
SFCOi~D DIVISION Docket No.
755 7
2-L11vi-EW-'
78
The Second Division consisted of the regular members and in
addition Referee Imin L2. Liebexnuan when award was rendered.
( System Federation No.
8,
Railway Employes'
( Depa rtment, A. f. of L. - C. I. 0.
Parties to Disru
te: ( (Electrical Workers)
( Missouxi-Kansas-1'~x.~,:,Rai.lroa.:d Company
DZS
'ate: Claim of I:f:~al.o;~es:
...
1. Appeal of the
October 7.3, 1976
disc ipl:i.na.ry removal of Radio
YlaintalnE'x' D. D Lee frOi;l the service Othe I·T1SSOl;;rJ_- cnScoS
r
feXeS tvc. ~ IrOad
~,0=:-~ic:,'IV
for all E;~;CdJ_;j bea.rlr_:; 1_nSlWOrCal2iu"L2
On
October 12,
.19j6
vri_enhe
refused
to acce_?t
·arlx
ac'anowl:age
receipt of a set of
Cli'i::`J11.'1g
tools and u, bG'"TIEr't on yo.i.e
Cli_:!l-_'":g
instx'v.c.u,iorls; and, for an a11(-;;ed
act
o' _::ait~.'~,x':i1y abseutin..t;
himself
prematurely ix°om his s~.;..perior's j.,-esence.
T'ha't, c.cCOrd:LYl~ly,
ta°
I~:1SS0~;1x°7.-·i_F-,11:~aS-'jE_'~'_?.S Railroad Coxnany be
ordered. to re~'ore ,-,ontlal
their SE_'Y"d1Ce Tv;~lti1 c1l
.'C?'liC,7L':i_v.y
rl'_-;htS, f',riu"e benefits and
vacation r7nh'GS 'L~.??'.''i~:;,a.1:(;
~,h;,.
)laid for all monthly lo^~s
comr~ene,_n~; with October 13, 1('v'0-~and for each !norAthly vrorTv day
thereafter untIl restored to tine Carrier's sex~vice.
Findin:
Ts
The Second Divisa on of the yd;jus tn:cnt hoard, upon the whole record anLI
all the evidence, finds ti:at:
The carrier or carriers and the e?n nloye or elr_ployes Involved 9.n this
dispute are respectively carx'iev' and employe
within
tile meaning of the
Railway Labor Act as approved June 21,
1934.
This Division of the Adjus tment Board has jurisdiction oven the dispa'i,e
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On October 12,
1976
Claixr.r7~.nt was rer,iavecz. from service and charged vrith
insubordination; he v-as charged with refusJn,- to accept. and acknowledge
receipt of, a, set of climbing tools aqd a
boo:~:--71-e·i:
on pole c1a.:ubing
instruction
and ~.'`arther 1 ea. v:i nS the r)r op,:~rty at cra:itt-in^; t:i.me despite bej-n,-_,,,
asked by a Carrier officer to remain to discuss his refusal.
The record contains substantial ev:i.de-rrce to sm,,)port Carrier's
conclusion that C1aLriawt vras -,Liilty of the ehwx-~es. However, it is also
F orm 1
Page 2
Award
NO
. 7717
Docket I`do. 755 7
2-T,~LT-EW-'
78
apparent that Carrier had, to a degree e, contrived to force the situation
leading to the discharge: specifically by choosing to offer climbing tools
to an employe who had earlier in the same day admitted to Carrier's officer
that he suffered from a severe fear of heights which made it difficult, i.
not impossible, for him to climb pole,. In spite of this circumstance it
:is abundantly c):al that an employe choosing to contest the validity of an
assignment has the obligation to comply wth di.rectio.s received from
Carrier arid raising the issue through the grievance procedure subsequently.
In its sub::ission, Carrier cites and relies
:i_21
part on Award
7035
of
this :Board ( in addition to others). In that Award we note that we said,
inter alias
"Insubordination .. . can eY:i..st in .varyiri,S degrees of
seriousness. Similarly, -(;he di_sci.pli_ne ini"nosed should
be measured by the sericusn°Es of the offense..."
In this dispute there is no question but that Clair^writ was guilty o,
insubordination. However, in the 1:'_gM of tile particular ciwumstances
surrounding the incident, we find Vat the discipline assessed has served
its p'._1rpOSe and direct that Clainnnt be reinstated without compensation for
time lost, but i:ith senio:rity ri.~TInts u21~.T2.ix'ed.
A
hT
A R D
Claim
sustained
in part in accordance with the Findings above.
1dAT1:0I~;E':T~ h:ATLF:OAD ADTUST%U,7y`T BGARTJ
By Order of Second hivision
Attest: Executive Secretary
National Railroad Adjustment Board
,,mC)S4mari.e BY'aSC:h - Administrative Assistant
Dated
J
Chicago, Illinois, this l.st day of November,
1978.