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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9883
SECOND DIVISION Docket No. 9511
2-CRC-MA-'84
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
( Consolidated Rail Corporation
Dispute: Claim of li~nployes:
1. That the Consolidated Rail Corporation be ordered to restore
Machinist A. M. Murphy to service and compensate him for all pay
lost up to time of restoration to service at the prevailing
machinist rate of pay.
2. That Machinist A. M. Murphy be compenstaed for all insurance
benefits, vacation benefits, Holiday benefits and any other benefits
that may have accrued and were lost during this period in accordance
with Rule 7-A-1 (e) of the prevailing agreement effective May 1,
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 inv6lved in this
dispute are respectively carrier and employes 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.
Claimant was withheld from service on September 9, 1980, pending a formal
investigation scheduled for September 16, 1980. By letter dated October 6,
1980, Claimant was advised that he had been dismissed from the service of the
Carrier.
The charges faced by the Claimant were insubordination, using abusive
language to a supervisor, and threatening a supervisor, all occurring on
September 9, 1980. The Organization contends that the action of the Carrier
was arbitrary and capricious in that appropriate notices were not sent. The
organization further argues that the evidence as presented at the formal
investigation did not support a finding of guilt with respect to the three
charges faced the Claimant.
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Form 1 Award No.
Page 2 Locket No. 9511
2-CRC-MA-'84
The Carrier avers that there is substantial credible evidence on the
record to support the finding, that the formal investigation was fair and
impartial, and that given the Claimant's past employment record, that the
discipline imposed was fully warranted.
It is a longstanding practice and policy of this Division, and other
Divisions of this Board, that
the
are not a trier of fact, and that absent
arbitrary, capricious and discriminatory behavior or abuse of managerial
discretion, we will not overturn the findings as adduced by the hearing
officer. We agree with the contention of the Carrier that there exists on the
record before us sufficient credible evidence in which to find as the hearing
officer has determined. This Division in Award No. 1687 states:
"The efficient operation of the railroad industry requires that
responsibility be fixed and the instructions of superiors be
followed. While it is hoped that supervisors and subordinates
maintain. a mutual respect for each other, r&= know that this is not
always the case. But the remedy by either is not to undertake to
settle differences by force or threats of force. To countenance
such conduct would bring about an intolerable situation. The
Railway Labor Act and the collective agreement
...
provide an
orderly method to settle such disputes. The agreement should be
adhered to in this type of dispute the same as any other."
We have consistently held that, if there is a disagreement as to the
following of a particular order, the order should first be obeyed and
subsequently grieved by the employe. This of course would not apply to an
order which would require an employe to commit an illegal act or an order
which is otherwise protected by various statutes. our careful and thorough
review of the record leads us to the conclusion that the Claimant should have
obeyed the order, and if he continued to believe it to be improper, file a
proper grievance later. (See Second Division Awards 4136, 1253, 1547, 2715,
3894, 2996, 3266 and 3894.)
In Second Division Award 4132, this Board found:
"The term 'insubordination' usually refers to an employee's refusal
to submit to the authority of a duly authorized supervisor and to
obey his instructions. However, 'insubordination' may also be
demonstrated by profane or vile remarks addressed to a supervisor by
an employee. The right of an employer to take appropriate
disciplinary action against an employee who is found guilty of
either type of insubordination is beyond doubt."
This Board has consistently held that where there is a conflict in the
testimony of witnesses at the formal investigation, the hearing officer, as
the trier of fact, makes the determination as to the credibility of evidence
and testimony. This Board shall not overturn such findings,
absent arbitrary,
Form 1 Award No. 9883
Page 3 Docket No. 9511
2-CRC-MA-'84
capricious or discriminatory behavior or an abuse of managerial discretion.
This Board is a reviewing body, not a trier of fact. We are not in the
position of being present at the submission of testimony, whereby we could
evaluate the written and oral submissions and demeanor of witnesses.
We also concur with the position of the Carrier that this Board has long
held that it is the Carrier's discretion and judgment to withhold an Employe
from service upon its determination that a major offense has been committed.
Our examination of the record does not yield us to overturn the Carrier's
determination on this point. Lastly, we find that the charges as presented to
the Claimant sufficiently advised him of the matter which would be considered
at the formal investigation. This Board has long held that a charge which
reasonably apprises an Employe of the facts under investigation and provides
him the opportunity to bear a defense is quite sufficient.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 9th day of May, 1984