Form 1 NATIONAL RAILROAD ADJUSTIEM BOARD Award No. 8087
SECOIJD DIVISION Docket No. 7972
2-CR-MA-' 79

The Second Div-,.sion consisted of the regular members and in addition Referee Herbert L. Marx, Jr. when award was rendered.

( International Association of Machinists and

( Aerospace Vloricers

Par ~i.es to Dispute
(
( Consolidated Rail Corpo,-:arion is ute: Clain, of Ernnloves

1. That Machinist- J. M. Spro)ase eras my operly susp~rz;ied from service for thia'ty (30) days,

Tr:wi'', accord :iT ~1,f, l`aChlniSt J. M. SpfO:,e'S record be clea~ ed arad he be C'Jrnmclirnsi:ed for each ,L-id every d-y he was suspended.

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`ftze Second Di.visa c7n of.' the Ad jm:tmiert Board, upon tae neaole record a.T~d all the evidence) finds that:

7.'h:' carrier or carriers and -the employe or employer involved in th's dispute are respectively carrier and e:rp1oye v~:i.zu:in the r:c~anin.g of the Railway Labor Act as approved June 21, 1 -1~34.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at herring thereon.

Claimant J. At. Sprouse was charged with:

(a) Insubordination, failure to comply with instructions of Supervisor by not going back to work rat approximately 11:23 f.i.i. at Samuel Rea Wheel Shop, on August 25, 1977.

(b) Antagonizing and assaulting a Supervisor by physically pushing him at Samuel Rea Shop, Hollidaysburg, Pennsylvania at approximately 11:23 P. M. August 25, 1917.

Claimant received a fair and extremely thorough investigative hearing, ryas thereafter found guilty of the charges by the Gamier, and given a thirty-Say disciplinary suspension.
Form 1 Award No. 8087
Page 2 Docket No. 772
. 2_CR-'vIA._''79

The role of the Board in reviewing such disciplinary matters has been discussed and determined in many previous awards, summarized recently in Award No. 7437 (McBrearty):

"Numerous prior awards of this Boar set forth our function in discipline cases. Our function in discipline cases is not to substitute our judgment for the Carrier's, nor to decide the matter in accord with what we rnig.rt or might not have done had it been ours to determine, but to pass upon the question whether, without weighing it, there 1u substantial eLr~Ycien.^.e to sustain a finding of guilty. If that question is decided. in true affirmative, the penalty imposed for the violation is a matter which rests in the sov:nci discretion of the Carrier. '..'e are not warranted in disturbing Carrier's penalty unless we can say it clearly appears from 'the record that -the Carrier's act`-un with respect thereto was d'iCr1Ii17.n3t0-ry, unjust, ,unreasonable, CapriC:i 0US or arbitrary, so a:~ -to constitute an abuse of that discretion."

In this matter, the Board need not be concerned ,:~ith conflict in test-ir.:ony. Out of the length;,T hearing record, it is necessary only to refer to the tes timony of the Cla:i.n'ar.z's supervisor who was directly involved in the incidenii; leading to both chzxrges. In pertinent purr, his test:Lrx,,ny is as follows:

" . .At approximately 9:30, I observed far. Sprouse talking with

_ , Mr. Sirpson, his mien representative, I didn't pay anLrt,h:~ ria -to him and went
back to work. Approximately fifteen minutes later I observed hire ;rith
the union man gain. I told J. Se ttleyyer, another foreman in the 1'Iheel
Shop and vie went to the area W at they were talking. I told 1,1r. Sprouse
to go back to work. ?:fir. Sprouse told me that he eras talking to his union
representative. I told him he could not talk to his union representative
on company time unless he had permission. I told him to go back to work
again. He told me he was talking to his union representative. I told
him a number of times to go back to work . . , . L `Z,

Snro~, SF·ent bac', t

c

work .

. . .

/At approximately 11:10 P.M./ I went over to where Sprouse was working and I told him that I was going to hound him until he either bid out or went to work. Every time that I saw him goofing off, that I was going to hound him .

. . .

I turned and walked away. I stopped and Mr. Sprouse came by and he stopped, put his shoulder against mine and started glaring at me. I told him to go back to work several more times.

Form 1 Award No. 8087
Page 3 Docket No, 7972
2-CR-MA-' 7)
At this tide, he told me that he couidn' t go back to work that

1 seas in his road. I told .~m_ jo sRr~_c around me and go back to work.

At this tine, he pushed me with his harnmer in his hand. And, in an automatic reflex, I pLZnc~ ed h im," (Errrphas:i.s added)

Ta_kirlg the suy)o-r'-nisor's -cos-t:i.~:~;;~Y (tirsch :is, n) effect, tine Carrier's case), all analysis sho,r,s the following:

1, In the first; instance, 'the Claimant did not respond instantly to
the orli.',2' to rCtlATii t0 W OZ';, b;.'t l:°v'erthe1C'c i did obey 'tiCa.B OTC!.f..'2`. I t ? S
dlff iCll_~.t to V1SLlw.'awi~ ~: that t`le :J'1'~`.'rC~l"..':F=',i'. took 1r::W'C than a J:1111'..1tC . 't';2ilC.'
this borders on ir.OL1b0rCL-:.Ildt10i1 (refL::>Ell. i.0 obey a proper order), it certuoJnlly
does not constitute Otitr-ll t defiance of &:vCORJty.

y The SLlper'va;pOr''S d1rOCt threat to 'thUtlnC2" the Claimwt1~ vas a misuse of -ihe s::.pervisor-orq_nioyee relationship and set up the all-.laspi:ere fox' v:rla-u follarved,

3. 't4'llen the supervisor aE as n directed the Claim:.uit to return to v:ork, the Claiz_~.:.la stated -Lrlat the supejrvi;>;)r s;~ ~.rj his ,,,ay. So::r c:r:dence to the validity of this _J.s given by tae su~jervisor's invitation to the Clair.,,,ant to "walk around" him. Surely this is an unnecessary confrontation on the supervisor's part.

It. When the Clairuant corzpl.ied with the supervisor's order to return to work, the allegation is that the Cl;iir:dant "pushed" the supervisor. There is no indication ;,hat this constituted a blow, and coptainly no physical harm resulted in the Claimant's attempt tn. Y=\!e. beyond the supervisor.

5 . The supervisor's response, in which he "punched" the Clainant,, zees of course totally unacceptable conduct.

From this the Board concludes that the Carrier's disciplinax'y action eras unreasonable and a lni:,reading of what occurred. Sprouse did not fail to comply with instructions; he was indeed momentarily insubordinate, but not to the extent of derogating the supervisor's authority. As to the second incident, the supervisor's o,'m testimony '.roilld appear that he set himself up to be pushed, nudged, or otherwise brushed against as Sprouse proceeded to carry out the supervisor's order. If the supervisor had silly stepped aside, the incident would not have occurred. The supervisor's state of mind is clearly revealed in his response of assaulting Sprouse and causing him physical injury.
Form 1 Award No. 8087
Page h Docket ido. 7972
2-CR-1,14,-' 79

Had nothing further occurred beyond the first incident, a disciplinary warning to Sprouse concerning the necessity of prompt compliance with orders may have been justified. In view of what fol:lc;;,ed,~however, the entire nature of the matter charged,

VJ A P D

Claim sustained.

·rr j~'1 n 1 . s Crrr rn fir,

PJ~.uiC:<~L ~'~IL.;~ ~~.~J~T,>~..~.~.tm BO_='L13.D

:3y Jr·aer of Second Divisicn

Attest: Ereci-rtive Sccretary
National Railroad Ad·jutTrer_t Board

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~Rosm::rze Brasch - Administrative Assistant Datea~.. at Chicago, Illinois, this 12th day of September, 1979.