Form 1 NATIONAL RAILROAD ADJUSTnENT BOARD Award No. 8580
SECOND DIVISION Docket No. 8553
2-EVE-CM-' 81
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
Brotherhood Railway Carmen of the United States
and Canada
Parties to Dispute:

Elgin, Joliet & Eastern Railway Co.

Dispute: Claim of Employes:

1. That as a result of an investigation held on Friday, October 13, 1978_

Carman Painter, John Jenkins, Jr., was dismissed from the service of the

Elgin, Joliet & Eastern Railway Company, October 20, 1978. The dismissal

of Carman Painter Jenkins is arbitrary, capricious, unfair, unjust,

unreasonable, and in violation of Rule 100 of the current working

agreement.

2. That the Elgin, Joliet and Eastern Railway Company, hereinafter referred to

as Carrier, be ordered to reinstate Carman Painter, John Jenkins, Jr*,,

hereinafter referred to as Claimant, to the service of the Carrier wit:h

vacation, seniority, and all rights and benefits unimpaired plus

coup ensation for all time lost commencing October 21, 1978 and continuing

until such reinstatement is in effect.

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, 1934.

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

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

Claimant was subject to an investigation hearing for "allegedly failing to follow instructions issued by General Car Foreman D. R. Knapp at approximately 8:30 a.m., Tuesday, October 10, 1978, when you were directed to paint a metal box located in the Repair Track Wood Shop". As a result of the hearing, the Claimant was dismissed from service for violation of Rule F and Rule 0, Paragraph 2 of the Safety Rules and General Regulations.

These rules read as follows:

"F. Every employe must be prompt and firm in the execution of his duty, but, at the same time, he must be civil and courteous.

Form 1 Award No. 8580
Page 2 Docket No. 8553
2-EJFE-CM-' 81
"Civil, courteous and socially acceptable conduct is required
of all employes in their dealings with the public, their
subordinates and each other. Boisterous, profane, vulgar,
or abusive language is forbidden. Employes must not enter
into altercation with any person, no matter what provocation
may be given, but will make note of the facts and report to
their immediate superiors.
Employes who are insubordinate, dishones, immoral, quarrelsome,
or otherwise vicious, or who are careless of the safety of
themselves or others or who do not have or fail to exercise
good judgment will not be retained in the service."
0, 2. Employes must report to and receive instructions from the
properly designated supervisor in their area and must comply
with the instructions issued by the supervising official on duty."

The Organization argues that the investigation and resulting action were improper because "the Claimant was dismissed for a completely different reason than than contained in the so called letter of charge". The Board does not agree. The charge was entirely clear as to the incident in question. If found guilty, the Claimant would properly be subject to rules dealing with insubordination (Rule F) and compliance with instructions (Rule 0). The Board finds that the hearing was conducted in a fair manner, giving the Claimant and the Organization opportunity for a full defense.

From the record, there is no question that the Claimant repeatedly failed to carry out instructions to paint a box and that such instruction was properly given. In his testimony at the hearing, the Claimant offered various reasons for his repeated failure to obey orders, none of which seemed plausible. One of the excuses was that the box was too hot to paint, but this is not borne out by the evidence.

What may have motivated the Claimant to refuse to obey an order, and thus be directly insubordinate, cannot be readily determined. He should have known that he was obligated to follow an order and, if necessary, to dispute the propriety of the order in a claim after he had complied. Compliance with proper instruction goes to the heart of the employee-employer relationship. The Carrier cannot be faulted for not tolerating such action, particularly in the absence of any mitigating circumstances.

The Claimant was properly found guilty of the charge. As to the severity of the penalty, the Claimant's disciplinary record -- while not including previous instances of insubordination -- does contain warnings and suspensions for unsatisfactory employe conduct. Under these circumstances, the Board finds no basis to interfere with the Carrier's action in dismissing the Claimant from service.
Form 1 Award No. 8580
Page 3 Docket No. 8553
2-EJ&E-CM-' 81

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

y
By ,.

R seiarie Brasch - Administrative Assistant

Dated at Chicago, Illinois, this 14th day of January, 1981.