Parties to Dispute:
Dispute: Clair-, of Employes:

NATIONAL RAILROAD ADJ LSTi ENT BOARD

SECOND DIVISION


The Second Division consisted of the regular members and in addition Referee Albert A. Blum when award z.?as rendered.

,;.,urd No. 9168

Docket NO. 9258

2-ICG-SM-'82

 Sheet Metal T7or~ers' International Association

 Illinois Central Gulf Railroad Company

2`hat accordingly the I.C.G. Railroad Cclnhany be ordered to:

 2.

 _ LI=d ings

 a. Compensate utr. Bush for all time lost.
 h. Mfake Wr. Bush vahole fox vacation rights.

 c. Pay Mr. Bush for. all contractual holidays,
 d. Pay i·.r. Bust: fox all ccntractL!aI sick da;;s
 e. Pay ,Tr. Bush fox all jury dut?r attendance.

 f. Remove all ccYresyond~-nce relating t,-) this
 and l:a.''liSt SL1S-.e7.;,_.c ^ f :'"CU' ~'1-=.* t'it'S1-'S iD c. ='S

 !he Second D1'J1SiC'n of the j_111uSt^leW __ Board, Upr),n t.le. V?ho7C' record and all
 the evidence, finds ta=.:t:

 is this dispute

 are respectively carrier and employe within the meaning of the RailT.7ay Labor act as approved June 21, 10134.

 This Division of tile Adjustment Beard has jurisdiction over the dispute involved herein.



days for refusing to obey an order from his General Locc^otive Foreman Ji. B.
 *_* 't 1 ~ C n~..~- ~a~1l,~y c-;.._.t that the hearing was
 ,1C11ClC·:eil or, JU-« ~.3, 19( 1. Tile .,°oa··.~..- _Cn C _.^:..S, ___ , _
 UI:%al.r. There was 2 delay before i t started. wOr2GVU:?", aeaiin°~ cfficrer also
 prefer='Pal Car-2d 3:!d rendered tae decision. T-e `~ro::~,Ce.L__v?? reSJC1dS i.:^'_'.C t."_".S
 In itsel-_ 1S not- a violation OL ?-ll1E'S but, in this case, 3-r-ganization. :--Is that
 nearin- officer included his OLJ`1 0D1i071S into --:c c 1:~': _~.._1 _ _ _'1e also wc:'W O-- t'~
 record ~7hen he asked whether the Or;anization had any need to call an-v further wit-:

 The carrier or carrier s and the employe or erlplo-Jes involved
 Form 1 Award No. 9168
 Page 2 Docket No. ,C2)r
 2-ICC-SM-'b2

 and had said it would also reduce overtime. It did furlough employes but, according to the Organization, overtime increased. The workers at the unit did not want to work the overtime under such conditions and organized resistance to such work. The Company, therefore, placed notices on the bulletin board telling the employes they would have to work overtime.

 As a result of what happened on July 13 when the general foreman went around with seniority lists to secure workers to work overtime (which also produced this and related grievances), an informational picket line was formed. The Carrier and the Organization then met. The Organization feels that the supervisors, as a result of pressure from their superiors, felt that they had to discipline those who refused to work overtime and this precipitated the disciplinary actions taken against the Claimant for the july 13 incident. The Organization also feels it affected the hearing officer's judgment.

 Moreover, the Organization C:eclares that the Carrier's general ICreP~an accepted excuses from employes in his c;4-~z department and excused they: from overtime. He, however, did not give trle Claimant w~1CJ did not work- in his dep-:rti:.ei:t a chance to offer any excuse as to v:;hy he did not want to TxoT_C OnJertl_me. In addition, the Crganizaticn claims that the Carrier knew that the employe hart not worked C·Iert1:::4' because of 3 work iniThe 1--rganl2,Rtlc-ii feels that the Cla?_'.:ant neither behaved Lmproperly nor was insubordinate to his supervisor vhen he refused to work cverti:e. On the ct!ler hand, the CTs'ai.ization feels t.'lat t-a superv-=SGr
 acted in 1tas a%'!trarv fasl'icn _._.d was -'1' -,' o1_- d,scrimi',?ation i dealing ,,it·i
tl.e Claimant b,- ::ot asking _h_i::i -,~, .~ did not wish toy :;o=k --~· i:.u.
                                        -00


According to the Carrier, FCreLitan 'ticllowell secured a copy of tie seniority list and assigned overtLme as needed, asking first those with the least seniority. If the employe offered a reasonable excuse, he was excused. -~,:hen he reached the Claimant r s name, the foreman assigned him to work overtime. The Claimant refused this direct order. The Clai?slant gave no reason why he could not work. The Carrier claims that two other supervisors were present when the Clai-:ant rejected the order to work overtime and he was warned that his refusal might subject him to discipline. The Carrier declares it has the right to require overtime, and the -rganization knows this to be the case even if the Claimant did not.

 In addition, the Carrier feels the hearing was fair. First, the Carrier points out that there is no evidence that the Claimant was prejudged. Second, the combining of the functions of bringing charges, hearing the case, and issuing the discipline in one person in no way affects the fairness of the hearing as many Board awards indicate. Third, there is no definition of the term "prompt". In any case, the notice of the investigation was sent to the Claimant within fourteen days of the incident. Fourth, the fact that the hearing officer told the stenographer to go off the record did not affect this case since the organization's objections to his going off the record was put in evidence. For all of these reasons, the Carrier feels the hearing was fair.

 'Finally, the Carrier feels the discipline was justified since it proved the charge of insubordination and a host of previous Board decisions state that insubordination merits discipline. This is particularly? true since in this case, the Claimant could have obeyed his supervisor, and if he felt the order improper,
 grieved later. -
 Form I Page

 Award No. 9168
 Docket No. 9258 2-ICC-SM-' 8?

 The Board, in analyzing the record, does not feel that the hearing was held in an unfair manner. All of the evidence that the Organization, wanted to bring forward was, in fact, brought forward and there is no evidence showing that the Claimant was prejudged. The other cc'-plaints are minor and did not viably affect the hearing.

 Concerning the substance of the case, it is clear that Foreman Hollowell told the Claimant that he "was going to force hire to work Saturday, duly 1';". The Claimant refused. He never gave a reason. The Claimant states he never was asked if he had a reason or was given an opportunity to give a reason. Two other supervisors said the Claimant did have the opportunity to give a reason but just refused to work. The Organization justifies the employe's refusal on tams. basis of a past work injury, in his testimony, however, the Claimant says that he did not work overtime because he worked Monday through Friday, "they gave me Saturday and Sunday off and that', the days I expect to be off".

 The Crgan uzaticn also ch a 1 laage S the fact that Pipef l.tter 3ush was suspended., for ~;~ days w-bile the other two Claimants in related grievances were suspend2d for five (5 j days. The 7rganizaticn charges that there was no "Justification for

 _, r imposing a penalty sly times greater only Cite one .~i _C.:_ accused", TC this
 argument, ti_c. Carrier respcnds that the Claimant's file indicates several letters

          y 7

of warning, plus one previous lj day suspension for insubordination. AS a result, the Carrier _ael s the thirty (-0, days su3Denssicn was "quite warranted". T:__ Ward Wes feel that It 1s 1'7=ropr12 U;_ G .. ...:e Carrier to t_:=:_ into ac.cu=:_ a Claimant's

 reccrd is particularly relevant when the employn fs charged with an Kfense Kmllar to those fc-r which the disciplinary action was taken against the employe before,

    Since tut Claimant 1::_.,.'CL18=' knew nor CiUE'SC.1c:_=d Whether h:. -as the _._?8t ,;1T?1.~


pl.pdf:Ltte!' being told t0 work; since i e did not know that FGre;aan Hollowell had
 accepted excuses .__ _ .. .. _., "~. i; SU'n[;rdln`'3j°_S SC that they dl'~ nCt h:1'1-t' t0 WC
 , o
 since h· 'i^ id - . -c:_ ....'L? tai. _. could not ,.._'-wi!z:::._t:.:.;- because Cf _._ .:'o';1::.

 related injury; s._.__ c._', sTnTiyes have to recognize that supervisors

 in fact, __muborciinace

 2n the Other 'land, ! L also appears clear L:.W_ 1,._ -.:'~3i, -C t W.--__ _

 employes who worked directly under him a chance to give a reason to be excused while his treatment of the Claimant in this case gave the Claimant little, if any, opportunity to give any reason for not working overtime or any hope tat if he gave a reason, Foreman Hollowell would pay any attention to it. I"or this reason, there was, in fact, discriminatory behavior - one reason that the Board becomes justified in altering discipline.

 There should be a suspension since the Claimant was, in fact, insubordinate. The suspension should be reduced from 30 to 25 days since the Claimant was treated in a discriminator;' fashion. The Claimant should be made whole for the five days lost minus whatever he might have earned while cut of service during that time.
 Form 1
 Page

 A LJ A P, D

 Claim suata'

 nod 1n cccrC_ance with

 Attest: Actin` Executive Secretart-

                      Natitna 1 Rai lroac Ad us ti::ent Fcard j


Dated at Chicago, MUM, this JULh day Gi Tune,

 Aorard No. 9168
 Docket \o. 0253
 2-ICG-SM-' ~~2

 tae F-1-1C11Pgs.

 NATIONAL R1I_,._ .D AMUSTIENT BOARD
 By Order of Second Ditrisi.cn

 1982.