Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
795&
SECOND DIVISION Docket No.
7776
2-L&N-EW-'79
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered,
( System Federation No.
91,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dignute: ( (Electrical Yorkers)
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1. That the Louisville and Nashville Railroad Company removed Upgraded
Electrician Apprentice K. C. Grimes from service without just and
sufficient cause and in so doing deprived him of his rights to
earnings from September 21 , 1976, until such time as he is
restored to service.
2. That, accordingly, the Louisville and Nashville Railroad Company
be ordered to restore Upgraded Electrician Apprentice K. C. Grimes
to the Carrier's service with seniority rights
unimpaired
and
compensated for all wage loss commencing with the date of his
discharge, September 21,
1976,
and continuing thereafter until such
time as he is restored to service,
3.
That the Louisville and ivashville Railroad Company be further
ordered to make Upgraded Electrician Apprentice K. C. Grimes whole
with respect to all rights, privileges and benefits associated
with his railroad. employment, such as, but not limited to vacation,
health and welfare and insurance benefits.
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,
193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant was dismissed for insubordination, Carrier charging that on
August 15, 176 he failed to apply an electric switch on Cab
O+?_8
and that he
refused to comply with the instructions of his Foreman to surrender the s;rrtch
after having refused to apply it to caboose
6428,
Claimant entered Carrier's
service on February 26,
1976
as an electrician's apprentice, At the time of
the incident, about
6
months later, he was working as an Upgraded Electrician.
Form 1 Award No.
7956
Page
2
Docket No.
7776
2-r.&N-Ew-'
79
On the day of the incident, Claimant reported to his foreman that Caboose
6+28
would not be serviceable because of a bad light switch and that a
replacement switch eras not i n stock. The foreman found a swatch and gave
it to Claimant with instructions to use it. The replacement switch given
Claimant was a single-pole one and off type, whereas the defective light
switch in the caboose was a
3-way
switch.
Claimant indicated to his foreman that the installation of the replacement
switch would be unsafe. The foreman assured him that the switch was safe and
instructed him to use it. Claimant refused and also refused to turn over the
switch to the foreman.
At the investigation, Claimant testified that he did not apply the switch.
because the amperage ratings on the two switches differed; that he eras uncure
of the results; that he wished to avoid reponsabilaty for damaging company
property; that he felt it was his responsa.bility since he had signed the caboose
sheet; and that he retained the switch because he thought it might be used. in
proceedings against him.
A reading of the record discloses that the foreman told Claimant that he
would take responsibility for directing Claimant to use the switch. At the
investigation, the following colloquy took place between the Hearing Officer
and the foreman:
"Q. Did you observe the amperage reading on the new switch?
A. Yes, I did. The switch was a Bryant single pole toggle
switch, with an amperage reading of ZO amps, 125 volts,
5
amps, 250 volts. T handed him the switch and showed him
(Claimant) where it read 10 amps, 125 volts and he stated
that this was the first time he had seen the 10 amps, 125
volts. He also stated he dad not apply the switch because
it read only 5 amps, 250 volts,
R.
isn't the rating of this new switch the same as the
switches that are to be applied to all cabooses?
A. The amperage reading on both of these switches are
similar.
Q, Is there any reason why this switch could not have
been applied to the caboose 6428 from your electrical
experience and background.
A. No, with a wiring change the switch that he dad not
apply cold be wired up i n the on position and worked
on the caboose effectively,"
It is not clear from the record that an apprentice with less than
6
months' service would know that the new switch could work with a wiring
change or that the foreman instructed him at the time that a wiring change
would make the switch operable and safe.
Form 1 Award No.
7956
page 3
Docket No.
7776
2-L&N-Ew-'
79
No showing has been made that installation of the switch given Claimant
by the foreman would be unsafe, or that it placed Claimant in physical
jeopardy. It is well understood that in case of personal danger to his
health ox safety, an employee is not obliged to comply with a supervisor's
instructions, but the record is barren of evidence of personal danger to
Claimants
We find in this case that although Claimant failed to comply with the
foreman's instructions,, we must recognize certain mitigating circumstances,
Both the Claimant and the foreman overreacted to the situation, no doubt clue
in part to the fact that both were relatively new and inexperienced on their
respective jobs. Claimant had been in the Company's employ fox less than
6
months at the tine of the incident. Moreover, although hired as an apprentice,
he was working at the -time as an Upgraded Electrician. The foreman was not
Claimant's regular foreman but eras filling a vacation vacancy.
Claimant's response and reaction to the Foreman's :i.nstxwctions were
misguided, but not malicious. Even if he honestly believed that the slritc:h
given him eras not safe he should leave installed it when so directed by the
foreman, particularly when the foreman advised him that he would take
responsibility.
Generally speaking, it is the duty of employees to obey orders. A
cardinal principle in the lair of the shop -- unless there is threat to an
employee's life or lir~n -- is to "obey now, grieve latex". Claimant should
have complied with the foreman's request.
Based on a reading of the record, we have reached the folloi~ring
conclusion: Claimant's refusal was misguided, rather than capricious,
stemming from his inexperience as an Upgraded Electrician which left horn unsure
and uncertain as to the safety risks involved in substituting one type of
switch fox another. The record. indicates that he did try to seek advice from
nearby enplayees concerning the difference in the snritches. Given that he
had less than
6
months' service at the tune, having been hired as an apprentice,
and the other factors hereinabove cited, we find mitigating and extenuating
circumstances leading us to conclude that the discipline of dismissal was
excessive, and that a :Lesser penalty is appropriate.
In reaching this conclusion, we do not condone Claimant's conduct. We
caution Claimant that by this decision he is put on notice that he must comply
with reasonable instructions from his supervisors and -that he has no right to
refuse to comply with such instructions :in the absence oz" arty probative
evidence or valid reason that such instnzction or order is arbitrary,
unreasonable, discriminatory, or would subject him to clear and evident danger.
His failure to do so will make him subject to discipline.
Carrier is to be cor!nnended for providing an opportunity for apprentices
to upgrade themselves, but in our judgment this case emphasizes the need to
consider an apprent-ice's capability to respond to the needs, requirements,
and responsibilities of an upgraded position before such assigrznents are :made,
Form 1
Page
Award No-
7956
Docket No.
7776
2-L&N-ETh
t
79
Our decision, then, is that the Claimant shall be reinstated to service
with seniority rights unimpaired, but without compensation for tine lost
subsequent to the date of his dismissal.
A W A R D
Claim disposed of in accordance with the above Findings.
NATIONAL RAILROAD h.DJ(.TSTPENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
o. ~ma?:ie Branch Administrative Assistant
Dated ~ Chicago, Illinois, this 13th day of June,
1979.