Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8390
SECOND DIVISION Docket No. 8352
2-BNI-SM-'80
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered,
( Sheet Metal Workers' International Association
(
Parties to Dispute:.

(

( Burlington Northern Inc.

Dispute: Claim of Em2loiyes:

1, That the provisions of the current agreement Rule 35(g) in particular has been violated account Sheet Metal Worker D. D. Christensen was given formal investigation, held on August 25, 1978; resulting in excessive discipline being rendered, in that he was dismissed from service effective 7:00 A.M., September 20, 1978.

2, That because of such excessive discipline being rendered, that the Carrier be required to re-instate and compensate Mr. D, D, Christensen for all time lost, the record of his dismissal be removed from his personal record and that he be made whole for all fringe benefits during the time held out of service.

Findings:

The Second Division of the Adjustment Board, upon the whole record and a71 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 waived right of appearance at hearing thereon.

Claimant was discharged for insubordination, Carrier charging that on night of July 6, 1978, Claimant refused to separate a locomotive from one consist in order that it could be added to the consist of Amtrak passenger train No, 7. Carrier contends that Claimant violated Rules 661, 664 and 667 of carrier's Safety Rules.

Carrier further contends that Claimant's actions were aggravated in that his refusal to perform the subject task was a repeated and unmoderated action and, moreover, it was punctuated by Claimant's use of profane and abusive language directed toward his immediate supervisor. Additionally, Carrier maintains that Claimant's assertion that said assignment was unsafe is an inappropriate defense in that said objection was not raised at the time of the incident itself but was raised for the first time at the investigation hearing which was held on August 25, 1978,
Form 1 Award No. 8390
page 2 Docket No. 8352
2-BNI-SM-180

Lastly, Carrier argues that Claimant's relative short tenure as an employee and his ,past work record involving similar violations, further militate against a favorable finding on the Claimant's behalf.

In the main, Claimant argues that the penalty of discharge is excessive. Claimant, in support of this position, contends that his refusal to perform the disputed task was predicated upon the sincere belief that said assignment was unsafe in that an abnormally severe thunderstorm was raging during the tune in which Claimant was directed to perform said assignment. Claimant maintains that he did not specifically refuse to perform said assignment, but merely wanted to delay the work until the thunderstorm had subsided. In addition to these initial claims, Claimant further contends that the inherent danger of undertaking the performance of this particular assignment at this particular time was heightened in that Claimant believed that he was being directed to perform said assignment alone without the benefit of the additional crew members who normally assisted in the performance of this type of assignment.

The resolution of this dispute would be a relatively simple matter if it could be determined with any degree of certitude that the conditions present at the Carrier's property on the evening of July 6, 1978, were either safe, as the Carrier contends, or unsafe, as the Claimant and his Organization contend, Obviously, this Board does not have the benefit of first-hand information regarding this particular aspect of the controversy, and can only look to the record for same direction. Unfortunately, however, upon review of the record,
this Board notes that there is considerable controversy regarding the two _
positions which are offered by the parties and, because of its appellate
nature, this Board is without jurisdiction to resolve conflicts in hearing
testimony or to determine the credibility of witnesses (See: Second Division
Awards 7325, 7+73, 7955, 7961, 7963, 8023 and 8201, also Third Division Awards
20602, 212+1, 21290, 21+2 and 22711). Accordingly, in disciplinary matters
the scope of the Board's appellate jurisdiction is limited to: (1) whether
Claimant received a fair and impartial investigation; (2) whether substantial
evidence supports Carrier's finding of culpability; and (3) whether the discipline
assessed is appropriate in all of the circumstances, or is arbitrary, unreasonable
or capricious (See: Third Division Awards 2121+1 and 213+2; also Second Division
Award 7955).

The major thrust of Claimant's position herein is that the disputed assignment was unsafe and the resultant discharge, therefore, was excessive. Under these circumstances, the burden of proof, which normally is shouldered by the Carrier in a discharge case, then shifts to Claimant and/or his Organization to prove by soave substantial or reasonable quantum of evidence that the di sp uted assignment was, in fact, unsafe. When this test is applied, the evidence strongly suggests that Claimant's refusal to perform the subject work assignment was motivated by other than purely safety considerations on his part; and because of this, it is deemed that the Claimant's refusal was insubordinate, and the resultant penalty which was assessed by the Carrier was not excessive and, therefore, will remain undisturbed by this Board.
Form 1 Award No. 8390
wage 3 Docket No, 8352
2-BNI-SM-'80

The rationale for the conclusion posited above lies in the generally accepted arbitral principle that a refusal to work because of unsafe conditions must be a sincere and honest conviction on the part of the employee, and must be supported by scene degree of tangible or creditable evidence. Furthermore, if possible, such a refusal should b e articulated as clearly and as soon as possible by the employee to his/her supervisor.

A thorough analysis of the record in this case, particularly several of Claimant's own admissions, clearly demonstrates to this Board, however, that Claimant's actions were at variance with the previously stated principle in that: (l) Claimant's refusal was not based upon any reliable evidence but rather upon his mere assumption that, because of the rain storm, the assignment was unsafe; and (2) Claimant's initial refusal was predicated upon his belief that the previous crew should have performed the assignment gather than he.

Claimant's statements which the Board finds as being particularly critical in this aspect of the analysis are found in Employee's Exhibit "A". These responses are sufficiently clear in their implication and require no further elaboration by this Board. Said responses are as follows:

"209, Q. What did you do when Mr. Fretzmann told you to go down to Tymdale Yard?

210, A: I told him that I did not feel that it was necessary,

I assumed that we were going in the company truck and

under the conditions I did not feel that it was safe

to be out in this severe weather and that I had

stated the conditions of the ground the following

week in a similar storm and conditions were similar

to this same day the following, I mean the prior

week before, Sarnebody was going to get hurt out

there one of these nights if something wasn't

done about the standing water out there. (Emphasis

by Board)

233, Q. You heard the words that McCloskey used that he is alleging you said about the rain and what Mx. McCloskey could do with himself. Do you remember telling Mr. McCloskey those words?

234, A. I just stated up until this time I have not been upset until he insisted that I go out in the storm. I felt that afternoons had Bluffed off on the job and then I was starting to get a little perturbed and yes I may have said something on this order because I am a hyper person and I apologize to everyone if I offended anyone, that was not my intentions. I may have said this, yes. At this time, I cannot deny anything that I said, (Emphasis added by Board).

Form 1 Award No. 8390
Page 4 Docket No. 8352 -
2-BNI-SM-180

"21+1. Q, Were you upset when you came to work that night?
21+2, A, Yes, because coming to work I had all I could do just
to get into the parking lot and stop my automobile. I
lost my brakes up in the parking lot going through all
the water on Main Street where it keeps flowing the
manhole cover oil at 42nd and Main. The water was about
six or seven inches deep when I went through there and
got my brakes all wet. At that time I just felt oh bay
this is going to be a nice night outside. Then I got
to work and I find out all of a sudden there is a rush job
right off the bat. That's when I started getting a
little upset with the company. Emphasis added by Board)
21+3, Q. Did you go to the office with the idea of a grudge with
Mr. McCloskey or anything like that?
21+4, A, No, I don't believe so. Everybody at Northtown realizes
that if you g?t out of line you end up with this matter
that we're in here right now for and it was definitely
on may mind and I tried to conduct myself but like I say
I'm a hyper person and I can't take this arguing and
bickering and getting nowhere with somebody when I'm
asking, I think, a reasonable question and fair question.
Like I say there was half an hour nobody at that time
up until they felt that it was a must move, then a71 of a
sudden it turns out because I'm here and it turns out
it~ swa21 Tf a sudden a rush move:.'' ThatTwhen I started
getting upset,jyes. Prior to that, no. Emphasis added
by Board
275 Q, Rule 664 reads as follows 'Courteous, orderly conduct
is required of all employees. Boisterous, profane
or vulgar language is forbidden.' Do you understand
that rule?
276. A, Yes.
277, Q. Did you concur with that rule?

278 A, I guess I didn't, I don't know. I got upset just like anybody else would get upset. At the time, foremen are saying that there was no need fox a rush and when I come on all of a sudden there is a need for a rush. Afternoons had lead time to get the unit ,ready, they felt it was unnecessary. Now all of a sudden third shift tames on and it has to be a rus and when you rush., you normally don't

J

work very safely. People are upset, hostlers get upset, he makes some crazy moves, people don't know where everybody is located. at. I tried to follow the book. If

the company doesn't want to adhere to what my statements, 'wr1~
Form 1 Award No. 8390
Page 5 Docket No, 8352
2-BNI-SM-' 80
"somebody's going to get hurt out there one of these nights
with these rush jobs then we are going to have a real
hearing,"(Emphasis added by Board

On the basis of the foregoing analysis, this Board concludes, without equivocation, that Claimant committed the act of insubordination as charged, and because of the gravity of such an offense, Carrier's dismissal determination was neither arbitrary, capricious, nor excessive as alleged. Furthermore, because of this and this Board's reluctance to interfere with a decision where sufficient or substantial evidence has been adduced, this Board can find nothing in the record which would serve to mitigate the discharge which has been imposed.

Accordingly, we will deny the claim.

A WAR D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

By ,~,./

o emarie Bras - Administrative Assistant

Dated a Chicago, Illinois, this 25th day of June, 1980.