Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8950
SECOND DIVISION Docket No.
9057
2-C&NW-EW-'82
The Second Division consisted of the regular members and in
addition Referee Clarence H. Herrington when award was rendered.
International Brotherhood of Electrical Workers
Parties to Dispute:
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. That the Chicago and North Western Transportation Company violated
current agreement when they assessed Electrician Robert Nicolay
fifteen
(15)
days suspension from service at Oelwein, Iowa beginning
December
27, 1979.
2.
That the Chicago and North Western Transportation Company violated the
current agreement when they failed to compensate Electrician Nicolay for
one and one-half hours while attending investigation as directed by the
Chicago and North Western Transportation Company on December 12,
1979.
3.
That accordingly, the Chicago and North Western Transportation Company
compensate Electrician Robert Nicolay for lost wages for fifteen
(15)
days (eight
(8)
hours each day), at the pro rata rate account of the
improper suspension and one and one-half hours at the overtime rate of
pay account of time lost for attending investigation outside of
regular shift as directed by Carrier.
Findings
The Second Division
Of
the.Adjustment Board , upon
the whole record , and all
the evidence, finds that:
The carrier or carriers aad 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 tiler the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was employed by the Carrier at its Oelwein Diesel Shops, Oelwein,
Iowa, on October 23,
1973.
On November 20,
1979,
Claimant was observed by a
supervisor standing near the time clock some five minutes prior to quitting
time. Claimant failed to respond to the supervisor's request to return to work.
On November
28, 1979,
Claimant was directed to appear for formal investigation
on the following charge:
"Your failure to properly respond to an order from Foreman
T. Reagan on November
20, 1979,
at approximately 11:50 P.M.
to return to your assigmnent. Your failure to comply with
Shop Bulletin S--105 in that you were observed in your
renn
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8950
Page '2 Docket No.
9057
2 -C&NW-EW-' 82
personal vehicle with the engine running between
11:55
P.M.
and 12:00 Midnight on November 20,
1979."
The Organization maintains that Claimant was not afforded a just and impartial
hearing, citing as most important the multiplicity of roles assumed by the hearing
officer. Specifically, the Organization notes the hearing officer, in addition
to holding the hearing, also conducted the preliminary investigation. It further
maintains that the Claimant was not properly notified as to the "precise charge"
as required by the rule. The pertinent portion of Carrier's notice to Claimant;,
dated November 28,
1979,
read as follows:
"CHARGE: Your failure to properly respond to an order from
Foreman T. Reagan on November 20,
1979,
at approximately
11:50 P.M. to return to your assignment. Your failure to
properly comply with Shop Bulletin S-105 in that you were
observed in your personal vehicle with the engine running
between 11:55 P.M. and 12:00 Midnight on November 20,
1979.
Upon a thorough review of the record, the Board finds that the objection
raised by the Organization regarding the multiplicity of roles assumed by the
hearing officer did not, in any way, impair Claimant's right to due process and
therefore holds the Claimant did, in fact, receive a fair and impartial hearing..
The Board further finds that the charges cited by the carrier in its notice of
November 28,
1979,
were precise and fully met the requirements of the rule.
Considering the testimony and conduct of the Claimant, as well as his representative
at the hearing, it is clear that they were prepared for the investigation,
were aware of the precise incident in question, and were sufficiently notified
of the Carrier's charge.
The Board, having dismissed the procedural issues, shall now consider the
case on its merits.
There was sufficient, competent and credible evidence adduced to support
Carrier's conclusions as to Claimant's guilt of insubordination. Foreman Reagan
testified:
"Q. Mr. Reagan, did you ask Mr. Nicolay to return to work
or did you give him a direct order to return to work? Did
you tell him specifically to return to his assignment?
A. The first one I gave him I asked him if he would go
back to his place of duty and the second one I asked him
if I had to give him a specific order to return to work.
Q. What was his response?
A. He did not respond, he just turned around and walked
away.
Q. Did Mr. Nicolay return to his assignment?
A. No, he didn't.
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Page
3
Award No.
8950
Docket No. 9057
2-C8oNW-EW-' 82
Q. What did he do?
A. He just stood approximately ten feet from the time clock:"
This testimony conflicts with the testimony of the Claimant:
"Q. (by Mr. Gallagher) Do you recall Mr. Reagan coming up to
you and asking you 3:f you needed a special invitation to
return to work?
A. (by Mr. Nicolay) No, I don't recall him saying that at all.
Q. (by Mr. Gallagher) Did you return to your assignment after
Mr. Reagon told you to?
A. (by Mr. Nicolay) I Fade an attempt to but I didn't get
very far when the buzze3 rang, so I turned around and
punched out."
The Board will not resolve the conflict in testimony as that is the functia:i
of the trier of facts. Here, the Carrier chose to believe the testimony of the
foreman.
This Board has held that insubordination may occur without a stated refusal
to do what he is told, as in the instant case, where the employe's actions
were diametrically opposed to complying with the lawful instructions of his
supervisor.
After a careful review of the facts the Board holds that Carrier did not
meet its burden of proof regarding Claimant being in his personal vehicle between
11:55
P.M. and 12:00 Midnight on November 20,
1979.
However, the Board finds
that there exists substantial proof in the record supporting the findings of
Claimant's guilt of insubordination and that the five day suspension imposed was neither
arbitrary, capricious, discriminatory or excessive but instead was an altogether
appropriate discipline given the offense involved.
The Board recognizes the distinction between "Discipline" and "Grievance"
and holds that the compensation called for in Item 2 of the Organization's claim
applies only to conferences concerning Grievances.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
osemarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this
Ird
day of March,
1982.