Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8$93
SECOND DIVISION Docket No. 8692
2-C&NW-CM-'82
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
Brotherhood Railway Carmen of the United States
Parties to Dispute: and Canada
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Cayman Welder Mark M. Hutton was unjustly assessed thirty
(30)
days
suspension following investigation held October 17, 1978.
2, Cayman Welder Mark M. Hutton was erroneously charged with violation
of Rule #7 of the General Regulations and Safety Rules for insubordination
to Foreman Koehler by refusing to follow working instructions.
3.
That the Chicago and North Western Transportation Company be ordered to
make whole Cayman Welder Mark M. Hutton, with all benefits that are a
condition of employment unimpaired, and compensated for all lost time
plus 6%
annual interest on all such lost wages, as per Rule
35.
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, 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, a Cayman Welder, was charged with
"...
violation of Rule
#7
of
the General Regulations and Safety Rules, specifically for insubordination to
Foreman B. C. Koehler by refusing to follow his working instructions". Pursuant
to an investigation of this charge, Claimant was adjudged guilty and was assessed
a 30
day suspension without pay.
The record in this dispute shows that on October 11, 1978, Claimant and his
foreman were involved in a confrontation of sorts. According to the Foreman, the
incident arose when he ordered Claimant to climb into a hopper car and do same
welding. Claimant at that point complained of the safety of such an assignment
because he believed that he would be welding directly over another welder who was
already working inside of the hopper car. The Foreman's reply to Claimant's complaint was, "Mark, don't give me that s---". Thereafter, Claimant asked the
location of some other employees and the Foreman's reply to this inquiry was,
"Don't worry about the other employees and get the hell in the car". At that
r
Form 1 Award No.
893
Page 2 Docket No.
8692
2-C&NW-CM-'82
point, Claimant, who was on the first or second rung of the side-ladder of the
hopper car, turned to the Foreman and said, "F--- you".
Claimant's version of the foregoing incident is almost identical to that of
the Foreman and thus needs no iteration.
Organization's position in this dispute is that the discipline which was
assessed was unwarranted, capricious and an abuse of managerial discretion
because: (1) Carrier failed to prove its charge against Claimant; and (2)
Claimant was deprived of a fair and impartial hearing.
Of the several arguments which organization raises regarding the merits
portion of its case, those of most significance are as follows: (1) Claimant's
actions were motivated by his concern for the safety of his co-workers; (2)
Claimant's remark was made in direct response to some dually offensive statements
which were made by the Foreman to Claimant;
(3)
Claimant's actions were not
insubordinate in the sense that he was refusing to perform the assignment
because he was climbing up the hopper car side-ladder when he made his remark to
the Foreman; and
(4)
Claimant's remark is more appropriately characterized as
"shop talk" which the Foreman had provoked.
Regarding the procedural errors portion of its case, Organization asserts
that (1) Carrier failed to provide Organization with notice of the investigation
hearing as required by Rule
35
(c) of the parties' Agreement; and (2) Claimant
was denied a fair and impartial hearing because the Hearing Officer held a
multiplicity of roles therein and also because the Hearing Officer played an
adversarial role in the hearing itself and was responsible for comments which
demonstrated that he had prejudged Claimant's guilt in the matter.
Carrier's basis position in this dispute is that Claimant's insubordinate
behavior is clearly evidenced in the record and that such an infraction is a
serious violation of the rules. Related to the foregoing, Carrier further
maintains that insofar as dismissal is the usual penalty for such an infraction,
Carrier's imposition of a mere
30
day suspension without pay cannot be considered
as being either arbitrary or unreasonable.
Turning next to Organization's contentions regarding the fairness and
impartiality of the investigation, Carrier contends that the required
5
day
notice was mailed to Organization and, regardless of Organization's claim in this
regard, Claimant was properly notified and Organization's Local Chairman was
present at the hearing and was conversant in the facts surrounding claimant's
charge. Regarding the Hearing Officer's conduct of the hearing, Carrier asserts
that the hearing was conducted fairly and impartially; and that though said
Hearing Officer may have played a multiplicity of roles at the hearing, such a
situation is not improper because he did not have any prior knowledge of the
incident and he did not enter any testimony into the record at the hearing.
The Board has carefully read and studied the complete record in this
dispute and is dismayed to find that the parties themselves have not been able
to dispose of this matter long before reaching this level because it is quite
apparent that both Claimant and his Foreman were equally responsible for the
Form 1
Pa ge 3
Award No. 8$93
Docket No. 8692
2-C&NW-CM-'82
incident of October 11, 1978. While Claimant erred initially when he engaged in
a debate with the Foreman regarding the propriety of a legitimate order which had
been given to him when he could only hypothesize on the potential hazards which
might arise and which might affect the other workers; the Foreman was also in
error by responding to Claimant°s inquiries with. his own unique brand of
inf lamatory, bullying verbal bombast. Given these facts, the Board cannot
condone the imposition of a penalty or the rationalization of the imposition of
any such type of penalty which, at the same time, does not take into account
the otter of the participants' "shared responsibility" which was the cause of
the instant dispute. Insofar as Carrier, apparently, has chosen to ignore this
element of the case and has chosen to place full responsibility for same upon
Claimant, the Board is led to the inescapable conclusion that the 30 day
suspension was an arbitrary assessment and, therefore, was improper (Third
Division Award 21291). For this reason, the Board shall modify and will direct
that the suspension be reduced to 15 days.
Raving made the determination in this dfepute on the basis of the merits of
the case itself, there is no need to now
comment on
the various procedural
questions which have been raised by the parties, save that of Carrier's contention
that any backpay remedy which might be directed should not include any interest
payment. Because the inclusion of such a payment is not specified in the
parties' Agreement, the Board is without authority to provide.
A W A R D
Claim allowed in accordance with Findings.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIQML RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY
~r r
marie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 3rd day of February, 1982