Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9389
SECOND DIVISION Docket No.
9+50
2-NRPC-MA-'
83
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister
when award
was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
( National Railroad Passenger Corporation
Dispute: Claim of Employee:
1. That the National Railroad Passenger Corporation (AMTRAK be ordered
to make whole Machinist C. Walsh, and compensate him for all pay and
benefits that may have accrued and were lost during a
9
day suspension
from service in accordance with the prevailing Agreement dated
September 1,
1977
as subsequently amended.
(7
working days were lost
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 employee 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, Clarence Walsh, is a machinist at the Carrier's Sunnyside,
New York, Yard with service since November 1,
1979.
On December
9, 1980,
Claimant
was-notified to report for an investigation on December
17, 19$0,
which was issued
in connection with a charge of insubordination, violation of Rule I. Claimant
was withheld from service pending the investigation. On the day after the
investigation, December
18, 1980,
Claimant was informed he was assessed a
7
working
day suspension, with the time he was held out of service to apply.
The Organization has advanced this claim on the basis the Carrier has failed
to meet the burden of proof through its failure to produce the necessary evidence
to support the charge.
Review of the record herein does not confirm the position of the Organization.
It is the opinion of this Board that the record developed by the investigation
establishes Grievant had at least three opportunities to comply with the instructions
directing him to Market Tower. It is a fact that this Claimant did not tell
either the Engine House Foreman or the General Foreman he would not do the work:.
Notwithstanding, the evidence clearly shows that the Claimant's actions and
responses could reasonably be interpreted as a refusal. His non-compliance is
manifested by his statements. His first reaction to the order was to tell the
Engine House Foreman he "didn't want to go" and that wanted to be back by
$:00 A.M. Sent to the General Foreman, the Claimant sought assurances that he
.1
y
Form 1 Award No.
9 89
Page 2 Docket No. ~+50
2-NRPC-NA-'
83
would be back at 8:00 A.M. because he had a "previous appointment". The
operations of the Carrier require compliance with issued orders. Compliance by
an employe is not discretionary.
We conclude the imposition of the
7
working day suspension for violation
of Rule I was proper and in accord with the facts developed at the investigation.
A W A R D
Claim denied.
NATIONAL RA IhROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 2nd day of February,
1983.