Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9213
SECOND DIVISION Docket No. 8916
2-CMStP&P-CM-'82
The Second Division consisted of the regular members and in
addition Referee George V. Boyle when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company did
unjustly remove Coach Cleaner James Earl Moore, Jr. from service for
a period of time encompassing April 4,
1979
to May 15, 1979·
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to compensate Coach Cleaner James Earl Moore, Jr. for all lost
time from April
4,
1979 to May 15, 1979.
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.
The Claimant is a coach cleaner at the Western Avenue Coach Yard in Chicago,
Illinois, After a hearing he was suspended from service for a period of thirty
days for alleged insubordination.
The Employes appealed their decision on the grounds that the "allegations
of insubordination in this instant claim were not borne out in the transcript of
this hearing", and therefore the Carrier had not met the required burden of proof:.
Further it is the Employes' position that the penalty meted out was not for the
purpose of correction but rather, improperly, for punishment. Also the Employes
object to the hearing procedures since witnesses to the specific occurrence, out
of which the claimant was charged, were not brought to the hearing as requested and
required under Rule 34(g) which says, in part,
"...
such employee will be
...
given
a reasonable opportunity to secure the presence of necessary witnesses".
With respect to the required burden of proof, the transcript provides a series
of exchanges which bear out the Carrier's position that the Claimant was given a
legitimate, explicit and unambiguous order to which he failed to respond properly:
Form 1 Award No. 9213
Page 2 Docket No. 8916
2-CMStP&P-CM-'82
The General Foreman questioned the Assistant Foreman,
"Q. What was Mr. Moore doing when you approached him
concerning passenger car 20221?
A. He was waiting 'til two mechanics repaired the one
toilet so that he could work there .
.....
Q. What were your instructions to Mr. Moore, Jr. at that
time?
A. I told him to go pick up garbage bags between 2 and
3.
Q. Did Mr. Moore do the work as instructed?
A. No.
Q. Did Mr. Moore make any attempt at that time to follow
through with your instructions?
A. No.
Q. Did Mr. Moore make any statements as to why he would
not perform the work as he was instructed?
A. Yes. He said that he was waiting for the 2 mechanics
to finish with the repairs before he could dump it
and fill it.
Q. If Mr. Moore did not attempt to remove papers and other
debris as instructed, what did he do?
A. He explained to me that he was only one person and he
stayed where he was."
Under cross examination by T. Machione, Local Chairman, the Assistant
Foreman testified:
"Q. In you honest opinion, would you say that Mr. Moore refused
your request as to picking up the papers?
A. Verbally, no, but by his refusal to go and do it, he did.
(By his lack of action.)"
The Claimant's own testimony, while frequently contradictory, substantiates
the Assistant Foreman's account. The General Foremen questioned the Claimant:
"Q. While you were waiting for the toilet to be repaired, did
Mr. Lee Thomas instruct you to pick
up
paper and other
debris?
Form 1 Award No. 9213
Page
3
Docket No.
8916
2-CMStP&P-CM-'82
A. Yes.
Q. You immediately picked up paper and other debris after
Mr. Lee Thomas instructed you to perform this work?
A. No.
Q. Did you immediately pick up paper and other debris
after Mr. Lee Thomas instructed.you to perform this
work?
A. No, we began talking.
Q. What did you tell Mr. Lee Thomas?
A. I said I was going to get the paper.
Q. When did you say you were going to get the paper?
A. In a few minutes."
Then the Local Chairman asked the Claimant,
Mr. Moore, in your own words, will you testify as to
what took place March 11,
1979,
as to why this hearing
is being held here this morning?
A. He came through the car and I was standing there and he
said 'Was I doing anything?' and I told him I was
waiting to dump a toilet, and he said, 'Well, go pick
up paper', and I said, Okay I'll go pick up paper.
And then he raised his voice and said, 'I said go
pick up paper now.' And that is when I told him I
Z was.only one man, and the electrician warkin
on the toilet told me he would only be a few mutes
which he was. That is when he said, 'Are you refusing
me? Are you refusing me?', and I said 'You know I
can't refuse, that's a dumb question.' Then he pulled
out the book and started writing, and he walked away."
In the Claimant's deposition, read into the record by the Local Chairman, he.
states, "On March 11,
1979,
Mr. Moore was instructed to perform his duties by
Mr. Thomas, Car Foreman, and Mr. Moore was waiting a couple of seconds for the
repair man to get through repairing the toilet on car X20221. In doing so, Mr.
Thomas requested Mr. Moore to pick up papers. Mr. Moore replied, 'I will as soon
as I dump this toilet.' Which he did comply with Mr. Thomas' instructions and
did pick up the paper."
From the above accounts, there is no conflicting testimony. The Claimant ways
standing, waiting to dump the toilet on car No. 201221. There were a number of
Form 1 Award No. 9213
page 4 Docket No.
8916
2-CMStP&P-CM-'82
other workers taking an unauthorized break in the same car, at the same time.
The Car Foreman came upon the scene and proceeded to break up the gathering. He
questioned the Claimant about his duties and finding him simply waiting for
repair work to be completed ordered him to undertake other duties. The Claimant
temporized and without verbally refusing outright to follow the foreman's
instructions he simply continued to wait until the repair work was completed,
performed his prior duties and then afterward complied with the explicit order
given earlier. However one may choose to alibi or explain the circumstances or
rationalize the time involved that action or inaction constitutes insubordination,
"the act of refusing to submit to established authority".
Insubordination is not a minor concern. The Carrier properly requires that
orders be obeyed and in this instant case assessed a disciplinary layoff for
purposes of correction, not punishment. This is borne out by the record as well,
wherein the claimant's foreman remarks upon his good work record and offers the
opinion that
"...
if Mr. Moore was given another chance that he would be the right
kind of employee. I don't believe he would do that again."
With regard to the question of procuring witnesses at the hearing, Rule 34(g)
says that the employe "at a reasonable time prior to the hearing
... will
be
...
given a reasonable opportunity to secure the presence of necessary witnesses".
Since the Claimant was notified on March 13 of his hearing on March 22 there was
sufficient and reasonable time for him or his representative to secure any
appropriate witnesses or to request a postponement to secure them. The time to
request a postponement of this nature is not in the midst of the hearing. The
Claimant and his representative were not unaware that other employes were present
when the incident occurred and if they could have shed light upon his case then
it was incumbent upon the Claimant to secure them. Further since the Claimant's
own testimony corroborates that of the foreman there would be little to be gained
from postponing the hearing especially since no evidence or testimony was introduced
which indicated that they had anything whatever to add or to substantiate.
Thus the Board holds that the Claimant was properly disciplined for
insubordination, the Carrier has sustained the burden of proof. The penalty was not
too severe, nor for punishment but was corrective. Finally the Board holds that
the procedure was fair and proper and accordingly we deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 22nd day of July, 1982.