Form 1 NATIONAL RAIL.RO~0 ADJUST1,21,'T BOP-RD, Award No. 8320
SECOND DIVISIOU Docket No.
7676
2-L&N-SM- · 79
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when au~,rd was rendered.
( Sheet Metal Workers' International
( Association
Parties to Dispute:
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1. That the Louisville and Nashville Railroad Company violated the
controlling agreement, particularly Rules 32, 33, 34 and
j+6
when
they unjustly dismissed Sheet Metal Jorker H. B. Ferrell from service
effective June 23, 10,76.
2. That accordingly the hou;.svrill~
-and
Nashville Railroad Con cany who
returned Sheet 7.`_etal Vorker
111.
B. Ferrell to service on Secteu_ber
21, 1976 with all seniority ril;h.ts unimpaired, now be ordered to
compensate him as follo:as:
1. Compensate Claimant for all time lost with
6%
interest
per annum.
2. Make Claimant whole for all vacation rights.
3.
Pay Hospital Association dues for all time out of service.
4. Pay the premiums for Group Life Insurance for all time out
of service.
5.
Pay Claimant for all holidays.
6.
Pay Claimant all sick ray,
7. Pay Claimant for all insurance premiums.
8.
Pay Claimant for all jurnyy duty lost.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the e,~ploye or employes involved in this
dispute are respectively carrier and e:;7clove within the meaning of the
Railway Labor Act as approved June 21 , 19134
.
This Div; si.on of the Adjustment Board has jurisdiction over the dispute
involved herein.
Fom 1
Page 2
Award No. 8120
Docket 110.
7676
2-I&J-SM-'
79
Parties to said dispute waived right of appearance at hearing thereon.
Following a hearing and investigation, Claimant zras suspended for 90
days without pay for allegedly being insubordinate to Asst. Department Forema_Z
R. B. Postlewait. Review of the entire record shows that Claimant knowingly
failed to obey an order from jostle:-rai
t
to come down off a locomotive and talk
with him. This established a or sma facie case of insubordination but the
case is not that simple. Tote would be reaniss in our duties as an
appellate
tribunal and blind to the realities of the situation if we did not also
consider the contest in which that insubordination took place. Illegality
and imminent danger are the two recognized grounds to justify conduct which
would otherwise be insubordinate. But other factors which may not justify
or excuse altogether an insubordinate act can and should be taken into
consideration when warranted to mitigate the impact of such an act. valile
we cannot completely condone Claimant's outright refusal to speak with his
authorized surerior we do find that he was provo=--ed into such benavi or by the
Assistant Department Foreman. Srecif ica2
-1y,
=ostleT-ai t diverted racial slurs
at Claimant dur-.n.a roll ca-1-1. on the n-. r'nt of _'.%rct'! 2, hi7. Shortly therewT'ter,
PostleS;ait issued a nez·r fla.sal'.-ht to anot=.r om~?c;,~ee in' Cla~nant's presence
but refused to
JiZ,r· Y - '1
r = . a
f
x .:. '-".
N · T^ rr
'~'1 · · z N . n
t
n=.;
one to Cl~:i._.a nt, tnw=
L_
~ J
d ~ . : , t n ~._e defective
flashlight -,nick tile other --~_nloyee had -lust, turned in. t
-7,s
in the
context of the racal .;firs
and
t'h?
disc
r...-7n%i.o` y. l';'eai.:=.Lnt
that C1a1L~'_ant
walked away from ros%l:rait, clir-'bed onto
1-he
;ccor-otive to perform his
job and refised to respond toos~:,ze:rait' > rep_eated o;-ders to stand dorm
from the locomot"re. Given the circi-istanc:-~s of the erase we find the disc i~I ine
of 90 days excessive. ','ie shah.. red-Lice t;1!.a.
-ccna7t-
to one- (1) day without
pay and order Carrier to co~:nensate Clai::::.nt in accordance ir!th Rule
34
for wage loss fren June 24 to Septe-her 21,
1976.
The balance of dazrages
claimed in items 1 through 6 of Part 2 of the c-iai:n are not awarded by us
because we have been a -prised of no contractual basis for such pa~rments.
See Awards
2-4795,
2-11.860, 2-70;'5.
Claim sustained to the extent indicated in the Findings.
NATIONAL R? IIROP.D ADJZTSTI TT~,~ BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad r:djustment Board
By
P
'" -'4.-,:r--,
~a . f'~ ~'~.
:"- r - '~ _
....''
t,.
ho emarie Brasch - Ad--d- nist/rativeV:'_s~`stant
Dated at Chicago, Illinois, this 27th day of Septenwer,
1979.