Form 1 NATICKAL RAILROAD ADJUSTMENT BOARD Award No. 9262
SECOND DIVISION Docket No. 8818
2-NRPC-EW-182
The Second Division consisted of the regular members and in
addition Referee David H. Brown when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That under the current agreement Electrician R. W. Pearson was unjustly
treated when assessed a thirty (30) day suspension by the National Railroad
Passenger Corporation (Amtrak), reduced to time held out of service nine
(9) actual days.
2. That accordingly Electrician R. We Pearson be compensated for the period
he was held out of service, with all benefits that are a condition of
employment unimpaired, reimbursed for all loss sustained, all insurance
benefits, all seniority rights, all vacation rights restored and the
removal of all the charges from his personal file.
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.
Parties to said dispute waived right of appearance at hearing thereon.
R. W. Pearson, Claimant, entered Carriers service on July 18, 1977. At the
time of the incident involved herein Claimant held the position of Electrician,
employed in the Coach Shop at Carrier's Beech Grove Maintenance Facility, Beech
Grove, Indiana. On March 21, 1979, while on duty, Claimant failed to comply with
General Foreman R. Collins ' warning to leave the area in which the employes take
their break because the break period had not yet arrived. By placing himself in
that area, the Claimant also failed to attend to his duties during the prescribed
time by being absent from his work area.
By letter dated Mach 21, 1979, Claimant was notified that he was being held
out of service pending further action in connection with his insubordinate behavior.
In a second letter, dated March 21, 1979, Claimant was notified to attend a formal
investigation on March 29, 1979, in connection with the following charges:
"1. Insubordination, by failure to comply with instructions from
General Foreman Collins at approximately 8:58 AM on March 21,
19 79 .
Form 1 Award No. 9262
Page 2 Docket No. 8818
2-NRPC-EW-182
low
2. Violation of Rules I & J of the N.R.P.C. Rules of Conduct
by your insubordinate and quarrelsome actions at approximately
8:58 AM on March 21, 1979.
3. Violation of Rule K of the N.R.P.C. Rules of Conduct by
failure to attend to your duties during the hours prescribed
by being out of your work area at approximately 8:58 AM on
March 21, 1979."
The cited rules read as follows:
"I. Employees will not be retained in the service who are
insubordinate, dishonest, immoral, quarrelsome or other
wise vicious, or who do not conduct themselves in such
a
manner that
the Company will not be subjected to
criticism and loss of good will."
"J. Courteous conduct is required of all employees in their
dealing with the public, their subordinates and each other.
Boisterous, profane or vulgar language is forbidden.
Violence, fighting, horseplay, threatening or interfering
with other employees or while on duty is prohibited."
"K, Employees must report for duty at the designated time and
place, attend to their duties during the hours prescribed
and comply with instruction from their supervisor."
The investigation was held as scheduled. At such hearing, General Foreman R.
Collins read his prepared statement as follows:
"At approximately 8:57 AM, March 21, 1979, Acting
General Foreman
P. Roby and I were assigned to go to the Truck Shop area to check
on people leaving the area for breaktime which is 9;00 o'clock.
Upon leaving the General Foreman's office, Mr. Roby and myself
started around. the
Northwest corner of the Material Cage. There
were approximately 7 or 8 employees standing next to the cage
area. At this time, we stopped and I asked the people standing
there if they wanted me to start taking names. Some of the
employees started leaving. One employee by the name of Mr. Pearson
looked at his watch and told me that it was one minute before
9:00 and made ro attempt to leave the area.
At this time, I asked Mr. Pearson what his name was and Mr.
Pearson screamed his name at me and started to walk off. His
raucous tone of voice and beligerent attitude was most
unbecoming in one of our employees. I told him to come back
again and he finally turned around and walked back to where I
was standing. I then told Mr. Pearson to follow me. I went
around to the West side of the Cage area and asked Mr. Plemen
to meet me there. I instructed Mr. Plemen that I wanted this
man taken out of service for Insubordination..."
Form 1 Award No. 9262
Page 3 Docket No. 8818
2-NRPC-EW-182
Cross-examination did not dilute the cogency of Mr. Collins' conclusions.
Acting General Foreman Paul Roby made the following statement;
"At approximately 8;57 AM, March 21, 1979,
General Foreman
R.
Collins and I went around. the corner of the Material Cage and
saw some employees standing there. General Foreman Collins
said, 'Fellows, do you want me to start taking names?' At this
point, most of the individuals turned to walk away toward their
work area.
One man held his arm up, look at his watch and said, ' If you
wait a minute, the horn will blow.' At this time, Mr. Collins
said 'Hey Buddy, you are not supposed to be here.' He screamed
at Mr. Collies, 'My name is Pearson'. Mr. Collins said, 'Don't
scream at me', and Pearson turned to leave. Mr. Collies said,
'Come back here' , and Pearson just kept walking. Mr. Collins
said louder, 'Come back here', then Pearson came back and we
took him over by the coffee machine to see Mr. Plemen.
The attitude and conduct of Mr. Pearson toward Mr. Collies
was quarrelsome, insubordinate, and definitely not becoming
an Amtrak employee."
Again, cross-examination was ineffective.
Rule 23 provides in part as follows;
"(a) Employees who have been in service more than 60 calendar
days shall not be disciplined or dismissed without a fair
and impartial investigation, unless such employees shall
accept such dismissal or other discipline in writing and
waive formal investigation. Such waiver must be in the
presence of a duly accredited representative of the
organization. The employees may be held out of service
pending such investigation only if their retention in
service could. be detrimental to themselves, another
person, or the Company." (Emphasis ours)
The Organization cites the emphasized language as authority for its position
that we should vitiate the assessed discipline because Carrier has not shown that
the retention in the service of Claimant at the time he was suspended would have
been detrimental to either Claimant,
anotrer person of Carrier. We reject this
contention for two reasons;
1. Insubordination is a pernicious thing, as is the matter of cheating on
break time. Claimant and his co-workers had been instructed not to leave their
work stations until breaktime. Carrier was entitled to enforce such rule and was
not required to treat the matter as a minor one. To do so would have been detrimental
to Carrier's interest.
2. The only penalty for unauthorized suspension of an employe is compensation
for time lost if no suspension was proper. We hold that some suspension was proper
under the circumstances.
Form 1
Page 4
Award No. 9262
Docket No, 8818
2-NRPC-EW-182
We further hold that Claimant was afforded a fair and proper investigations
The record contains clear and convincing proof that Claimant violated the cited
rules, and there is no procedural error to be found. Moreover, the discipline as
adjusted by Carrier was reasonable.
A W A R D
Claim denied.
Attest; Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
marie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 28th day of July, 1982.