Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8714
SECOND DIVISION Docket No.
8603
2-CR-MA-181
The Second Divisiarn consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That Machinist Wineck B. Wooley was improperly removed from service on
October 21+,
19'(8,
and, subsequently, unjustly dismissed from service on
November
15, 1978.
2. That Machinist Wineck B. Wooley be returned to the service of the
Carrier with seniority unimpaired and be made whole for all wages lost,
and for any and all benefit losses incurred in accordance with
Controlling Agreement J-1--(e) and existing law, if any, commencing with
the removal from service October 24,
1978,
and continuing until settled.
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 over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant, a machinist, was, suspended from service on October 24,
1978,
and
was subsequently dismissed from service after a hearing. Claimant was charged with
two offenses, insubordination and use of abusive language, which arose out of a
single event.
At the commencement of claimant's shift on October 24,
1978,
the General
Foreman instructed the claimant: to work as a machinist in the passenger engine
overhaul program. Claimant refused to obey the instructions. During a meeting in
the superintendent's office, claimant repeatedly reiterated that he would perform
no work on passenger engines. The claimant normally maintains loeowtlves
pursuant to a previous bid and award. The carrier did not give the claimant a
reason for the change in work assignments. When told he could not refuse to comply
with the General Foreman's direct order, claimant told four or five carrier
suptxvisors, "You are all a bunch of f --- " and "F --- all of you". Claimant
then requested that he be taken out of service. The request was granted.
Form 1 Award No.
8714
Page
2
Docket No.
8603
2-CR-MA-'81
Initially, the organization raises a question concerning the fairness of
the hearing. One of the primary carrier witnesses (the superintendent) issued
the letter of discipline. After perusing the record, we cannot see how this minor
procedural irregularity prejudiced the: claimant. Furthermore, the superintendent's
testimony was precisely corroborated by four other witnesses. Thus, we overrule
the organization's objection.
In defense, the employees raise two arguments. First, the order given to
claimant was contrary to his usual assignment and so he could properly refuse to
follow the directive. Second, assuming he is guilty of insubordination, his
language was nothing more than shop talk and therefore the discipline imposed was
arbitrary. The carrier contends that there is substantial evidence demonstrating
that claimant committed both offenses and because the claimant had served a suspension
for a prior insubordination charge, dismissal is the appropriate penalty.
Claimant's admissions and the testimony of five reliable witnesses confirm
that the claimant failed to follow a direct order given by his supervisor. To
avoid anarchy in the shop, the principle of "work now; grieve later" is applied
where the employe disagrees with a supervisor's instruction. Second Division
Award No.
8223
(Roukis); Second Division Award No.
7767
(Weiss). If employes
could engage in self help whenever they subjectively determined that an order was
unreasonable, the stability of both continued production and peaceful labor
relationships would be shattered. In this case, if claimant sincerely believed
the General Foreman's order was contrary to either past practice or the applicable
agreement, his remedy was to obey the order and then invoke the contract grievance
machinery. There are some very narrour exceptions to the "work now, grieve later"
principle. An employe may properly refuse to comply with a supervisor's order when
performance of the instruction could 11,eopardize the claimant's safety or when the
order is prohibited by law or when the: order is completely unrelated to the
workplace or to the activities of the company. None of the exceptions are
applicable in this case. Claimant was ordered to perform an assignment which was
safe, legal and related to the workplace. Claimant had no right to disobey the
order or to engage in self help. Thus, claimant committed insubordination on
October
24, 1978.
We also find that claimant used foul language during the discussion in the
superintendent's office. Abusive words are often excused because the language of
the shop is earthy. Third Division Award No.
20077
(Lieberman). In this case,
claimant was so upset about the order to work on passenger engines that he allowed
his temper to get out of control. While we cannot condone claimant's outburst,
we will consider the surrounding circumstances when reviewing the penalty.
Insubordination is a flagrant offense which justifies a severe penalty.
However, the organization correctly asserts that the penalty for insubordination
cannot be arbitrary or excessive. Third Division Award No.
19925
(Lieberman).
In this case, we rule that claimant's time out of service is sufficient discipline
to impress upon him that he has a contractual duty to faithfully follow his
supervisor's directives. As far as the abusive language charge is concerned, a
reprimand is sufficient punishment. We note that claimant had been previously
disciplined for insubordination and, therefore, we will not tolerate any future
insubordination by this claimant. We are providing the claimant with his final
chance to prove that he can diligently comply with his supervisor's orders.
Form 1
Pa ge
3
Award No. 8714
Docket No. 8603
2-CR-MA-181
The claimant shall be reinstated, with seniority unimpaired, but without
back pay.
A W A R D
Claim sustained but only to the extent consistent with our findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
irie Brasch - Administrative Assistant
Dated atL Chicago, Illinois, this
6th day of May, 1981.