Form 1 NATIONAL RAILROAD ADJL'STTLM:I~T BOARD Award No.
8563
SECOND DIVISION Docket No.
8519
2-CRI&P-MA-' 81
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( International Association of Machinists and
( Aerospace workers
Parties to Dispute:
(
( Chicago, Rock Island and Pacific Railroad Company
Dispute: Claim
of
Employes:
1. That under the current agreement and the Chicago, Rock Island and
Pacific Railroad Company schedule of rules the Carrier unjustly
dismissed Machinist J. Lovell from service effective September
15, 1978.
2. That, accordingly, the Carrier ordered to restore J. Lovell back to
service in the following manner: (a) restore Claimant t0 service with
all seniority rights unimpaired, (b) compensate Claimant for all time
lost, (c) make Claimant whole for all vacation rights, (c) pay the
premiums for hospital and surgical and medical benefits for all time
left out of service, (e) pay the premiums for group life insurance for
all time held out
of
service.
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 .pct
as approved June 21,
1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right
of
appearance at hearing thereon.
At the time
of
dismissal, the claimant was employed as a oachinist with a
seniority date of January 30, 19'i11r.
On
_fE'ytr'. ('L)Cr ' ;j"-3,
directed to attend an investigation to
,.('L)Cr
U.
~
L
C~.31_^.13I?t.:
was determine if he was in violation of Rules B, E, N, or Q in connection with his
alleged
insubordination
to 1'orernn J. E. Diehl and his alleged absence from duty
without permission on July
31, 1978.
The rules quoted in pertinent part read as
follows:
Rule B
"Employees must have a proper understanding and working
knowledge
of
tend obey all rules and iat~uctions in
whatever fonn issued, applicable to or affecting their
duties."
Form 1 Award No.
8563
Page 2 Docket No.
8519
2-CRI&P-MA-' 81
Rule E
"Employees must render every assistance in their power in
carrying out the rules and instructions. Courteous co
operation between employees is required for proper functioning
under the rules and instructions."
Rule N
"Courteous deportment is required
of all
employes in their
dealings with the public, their subordinates and each
other.
Employes must not be:
(1) Careless of the safety
of
themselves and others.
(2) Negligent
(3)
Insubordinate
(4) Dishonest
(5)
Immoral
(6) Quarrelsome or
otherwise vicious"
Rule Q
"Employes must report at the appointed till, devote
themselves exclusively to their duties, must not absent
themselves, nor exchange duties with, or substitute
others in their place without proper authority."
From the outset, the organization argues that as a result of the conduct of
the hearing officer, the claimant did not receive a fair hearing as guaranteed
by the agreement. These arguments are extensive and at first glance cogent.
However, we are precluded from entertaining this objection in the final analysis
because it was not made at the time of the hearing. The carrier accurately
points out that at no time during the hearing did the claimant, actin; as his own
representative, object to the conduct of the hearing officer. The Board notes,
as a matter of fact, that the claimant acknowledged at the conclusion of the
hearing that it was a fair one. It is well established that the organization
is precluded from making procedural objections before the Board that were not
made during the course of the hearing on the property.
The charges had to do with a conversation that took place between Foreman
Diehl and tae claimant while claimant was on duty. At approximately
10:55 p.m.
the forer:an approached the claimant, who t the zimc, vas talking to some other
employees. Foreman Diehl questioned the claimant regarding, what in Diehl's
opinion was, low productivity for the clailr:lnt's shift which began at 4:00 p.m.
At this point, the czarrier ccntellds that tile clailn~:nt then reacted to his supervisor's
criticism in somewhat
or
a fit of anger and in a threatening manner toward Diehl.
.~'
g
Then
~?C.C(i._<t:1;~ ;:C'
ai..t?L31. ti?e CLa1:.iialt 1.:.uL~:uLed lle was going home. The carrier's
argument is based on the following testimony by Diehl:
Form 1
Page
3
Award No.
8563
Docket No.
8519
2-cRI&P-M4-' 81
"Q: What was Mr. Lovell's reaction when you told him
you felt that he was not properly attending to his
duties?
A: lie said something about wanting him to fly, started
waving his arms around, screaming I am a bird several
times. He then informed me that he liked no one to
tell him what to do. That he was
goir:g
home.
Q: In your opinion was Mr. Lovell angry during this
conversation?
A: Yes sir, very much so.
Q: Did you feel his gestures were threatening?
A: I did.
Q: Did Mr. Lovell then get ready to leave the job?
A: Yes, he went up to the engine, removed his tools and
from his tool locker, addressed me at the office door
and said, 'Write in your book I hurt my neck and I am
going home'. Ile then left the roundhouse."
In reviewing the transcript, the Board concludes that there is substantial
evidence to support the charges. It is our opinion that when the record is
read as a whole and all the evidence is pieced together the most rational
conclusion is that the claimant did in fact behave in a way w:iich would justify
some discipline. We are convinced that the claimant did becore incensed with his
supervisor's criticism and that this type
of
behavior is clearly prohibited by
the carrier's rules. The evidence that leads us to this conclusion includes the
testimony of Foreman Diehl, the claimant, Mr. Dullard (Laborer and Mr. Dorn
(Machinist). We have already noted Mr. Diehl's testijr;ony which is supported
in part by that of the others. The claimant admitted he was up.,:et at the
I-:ay
in which Diehl questioned his productivity. The rn-nner in which he was q uesticncd
was undeniably profane. Ile further testified he stated to Diehl that "I am
not a bird that I cannot fly around this place." Dorn testified he overheard
Lovell and Diehl talking and that Lovell "t~:.U:eed with a higher voice than normal."
Dullard testified that Lovell "seemed upset" and talked loud.
Regarding the portion of the charge relating to leaving his assignment without
permission, the Board finds no evidence that the claimant sought or received
permission to leave his assignment. The organization in its submissions to the
dial nc.- reed
^-r1.:
ission to leave his
assignment because he left his assignment as a result
of
an injury. They
produce letters from doctors indicating the claimant did in fact have a neck
condition. In the context of this case we believe the ciaizant sia_ply used '.zLs
neck condition as an expression of anger and as an excuse to retaliate against
his supervisor. We do not believe the clai.r:ant has the right to resort to this
type of self help. An employee, if aggrieved by the conduct of a supervisor,
does not have the right to throw his hands up in anger and effectively walk
off
the job. If this type of benavior wore condoned, the wor.riae would b,:: in
chaos. It is well established if an er?ployee is aggrieved by a supervisor's
conduct he must use the grievance system rather than resort to self help.
Form 1 Award No.
8563
Page 4 Docket No.
8519
2-CRI&P-MA-'81
Having found that the charges against the claimant are supported by substantial
evidence, the Board will consider whether the quantum of discipline is appropriate.
The function of the Board in this respect is to consider whether the discipline
when related to the seriousness of the charge axed the clairiant's past record T.-,as
so unreasonable as to be considered arbitrary, capricious or excessive. The
carrier argues that dismissal cannot be considered as excessive when the claimant's
past record is cons i·:-- red.
_..
a F - -: rd agrees that the past record
of
the clai:rint
does not distinguish the claiirant as a model employee. However, there is not
any evidence in the form
of
progressive suspension that would convince us the
claimant is beyond correction and not worthy of continued employment and another
chance. The claimant had been given several letters of reprimand for absenteeism
which were the
subject of
two investigations. As a result
of
one he was given a
30-day deferred suspension. However, his past record as read into the transcript
does not indicate he had served any actual suspension. Without seeing whether
the claimant is responsive to a corrective suspension we cannot conclude he is
beyond rehabilitation and not worthy of continued employtaent. As a result, we
must say that dismissal for a charge of this nature for a claimant with no prior
suspensions is excessive. Therefore we will direct his reinstatement with no
back pay.
The Board understands the carrier's frustration with a "problem" employee such
as the claimant. But in a certain sense the carrier has caused sove of the problem.
The carrier by ignoring all the clair:;nt's transgressions ~:nd leaving them
effective unpunished over a long period
of
tim,e condoned undesirable behavior.
The carrier can't expect to uphold dismissal for an offense of this nature after
never having been anymore severe than giving the claimant a JO-day deferred
suspension. They should have, for a charge of this particular nature, previously
given the claimant a chance to prove himself capable
of
corrective discipline or
responsive to reasonable efforts to correct his behavior.
The degree of discipline is partly mitigated by the conduct
of
Foreman Diehl
when he questioned the claimant about his productivity. It is beyond question that
this is the supervisor's right. Kowever, it is undenied that when he did so
Diehl made a vulgar, profane and accusatory statement toward the clairmnt. It is
understandable that the claimant was provoked to some degree by this conduct. If
supervisors would attempt to treat employees in the same way they would like to be.
treated perhaps incidents of this kind would happen less frequently or be resolved
on the property.
On the other hand, we are obviously not exonerating the claimant. He acted
improperly as previously n:yc:d. ':::e _._ __ _.__ _. _
._ ,.i~,_
__a tt,A
behavior
that is e-^ected
of h:.:1 b,
7
tile
earriei' and b,r th.s
BC-,-rd.
Je re7.nstale t='_e
claimant with seniority and other rights unimpaired but without any compensation
and this admonishment and warning that if continued employment is desired he should
conduct himself in conformity with the carrier's rules.
A U A R T)
Disc.'_pline modified to the extent Ladicated in the Findings.
Form I
Page
5
Attest: Executive Secretary
National Railroad Adjustment Board
.oser.iarie Brasch - Administrative Assistant
Dated /
at Chicago, Illinois, this 7th day of January,
1981.
Award No.
8503
Docket No.
8519
2-CRISP-MA-'81
NATIONAL, RAILROAD ADJLiSTrENT BOARD
By Order of Second Division