F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9169
 SECOND DIVISION Docket No. 9259
 2-ICG-SM-182
 The Second Division consisted of the regular members and in
 addition Referee Albert A. Blum when award was rendered.
 ( Sheet Metal Workers' International Association
 Parties to Dispute:
 ( Illinois Central Gulf Railroad Company

 Dispute: Claim of Employes:












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.

The Claimant, Sheet Metal Worker Dennis E. Belcher, was suspended for five days for refusing to obey an order from his General Locomotive Foreman J. B. Hollowell on July 13, 1979. The Organization claims, first, that the hearing was unfair. There was a delay before it started. Moreover, the hearing officer also preferred charges and rendered the decision. The Organization responds that this in itself is not a violation of rules but, in this case, the organization feels that the hearing officer included his own opinions into the questioning. He also went off the record when he asked whether the Organization had any need to call any further witnesses after it had called several. All of this, the Organization claims, shows that the hearing officer had prejudged this case.
 Form 1 Award No. 9169
 Page 2 Docket No. 9259
 2-ICG-SM-182 ,rr

 The Organization then discusses the case's background. It reports that shortly before the date of the incident, the Carrier's Paducah Shop had reduced its force 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 produced this and related grievances), an informational picket line was formed. As a result, the Carrier and the Organization met to discuss the problem. 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 declares that the Carrier's general foreman accepted excuses from employes in his own department and excused them from overtime. He, however, did not give the Claimant who did not work in his department a chance to offer any excuse as to why he did not want to work overtime. The Organization feels that the Claimant neither behaved improperly nor was insubordinate to his supervisor when he refused to work overtime. On the other hand, the Organization feels that the supervisor acted in an arbitrary fashion and was guilty of discrimination in dealing with the Claimant by not asking him why he did not wish to work overtime.

 According to the Carrier, Foreman Hollowell secured a copy of the seniority list and assigned overtime as needed, asking first those with the least seniority. If the employee offered a reasonable excuse, he was excused. When he reached the Claimant's name, the foreman assigned him to work overtime. The Claimant refused this direct order. The Foreman states he gave no reason why he could not work. The Company claims that two other supervisors were present when the Claimant rejected the order to work overtime. They, however, declare that the Claimant said that he had something planned for a month. He was warned that his refusal might subject him to discipline. The Carrier declares it has the right to require overtime, and the Organization 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 the 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
 Form 1 Award No. 9169
 Page 3 Docket No. 9259
 2-ICG-SM-'82

 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 .

 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 complaints are minor and did not viably affect the hearing.

 Concerning the substance of the case, the Claimant did offer a vague excuse - namely, that he had something planned for a month. General Foreman Hollowell could not recall any such statement; the other two supervisors did recall the Claimant making such a statement. None of them recalls Foreman Hollowell responding at all to the Claimant's reason except to order him to work.

 Since the Claimant neither knew nor questioned whether he was the most junior pipefitter being told to work; since he did not know that Foreman Hollowell had accepted excuses from his own subordinates so that they did not have to work; and since employes have to recognize that supervisors have the right to request overtime based on the seniority list and employes have the responsibility of giving a specific reason as to why they wish to be excused from overtime, the Claimant was, in fact, insubordinate.

 On the other hand, it also appears clear that Foreman Hollowell gave those employes who worked directly under him a chance to give a reason to be excused while, in this case, when the Claimant gave a vague reason, he did not ask him to be more specific. For 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 five to two days since the Claimant was treated in a discriminatory fashion. The Claimant should be made whole for the three days lost minus whatever he might have earned while out of service during that time.




                            By Order of Second Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Boa

 By---O'' Li.~.

      semarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 30th day of June, 1982.