Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10039
SECOND DIVISION Locket No. 10203
2-MP-FO-'84
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That Billy Hackett, Jr. was unjustly dismissed by the Missouri Pacific
Railroad Company on February 25, 1982.
2. That this unjust dismissal was the result of an unfair, prejudged
investigation which was conducted on February 17th and 18th, 1982, at
North Little Rock, Arkansas.
3. The undersigned was present at his investigation and strongly dissented
the proceeding. (See page 10 and 16 of the investigation transcript.)
In addition it appears that the charges against Laborer Mr. Billy
Hackett, Jr., are dual and therefore improper.
4. That accordingly, Laborer Billy Hackett Jr. be restored to his assignment
with all seniority rights unimpaired, and that he be compensated at
the pro-rata rate of pay for all time lost, plus 12% annual interest,
and that he be compensated for any loss due under the Vacation, Health
and Welfare Hospitalization and Life Insurance Plans.
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 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, Billy Hackett, Jr., was employed as a laborer by the Missouri
Pacific Railroad Company, hereinafter referred to as "Carrier". Claimant entered
Carrier's service in approximately June, 1980.
On February 10, 1982, Claimant was notified to report for investigation on
February 17, 1982, in connection with his alleged insubordination when he refused
to comply with certain instructions of Mechanical Foreman B. D. Perrymore and
General Foreman T. R. Green on February 10, 1982. This charge stems from an
incident wherein Claimant did not immediately follow Foreman Perrymore's order
to go to Perrymore's office and did not fill out the time card when instructed
to do so by General Foreman Green. Claimant chose to defer doing so until he
removed a full hose from a locomotive and restored it to its place.
Form 1 Award No. 10039
Page 2 Locket No. 10203
2-MP-FO-'84
On February 12, 1982, Claimant was notified to report for investigation on
February 18, 1982, in connection with his alleged failure to:
1. Promptly report alleged injury;
2. Promptly notify his immediate supervisor; and
3. Furnish at once a full and complete report of alleged incident at
approximately 3:45 a.m. on February 10, 1982.
The injury involved in these charges occurred at approximately 3:45 a.m.
during Claimant's
confrontation with
Foreman Perrymore. Claimant's accident
report stated that:
"...
Foreman Perrymore 'grabbed' Laborer Hackett's left arm causing
severe pain. Hackett snatched away
... causing
a pulled muscle on
the right side of back and bruised arm muscle."
Claimant did not inform anyone of this injury and did not hand in an accident
report until 11:30 p.m. the next day. Additionally, Claimant intentionally
failed to name an occurrence witness in the accident form.
As a result of these two investigations, Claimant was notified of his
dismissal on February 25, 1982.
The Organization's position with respect to Claimant's failure to obey the
instructions of Foreman Perrymore and Green is that Claimant would have been
negligent in his job if he had gone to Foreman Perrymore's office immediately
upon request. Claimant delayed leaving until he secured the fuel pump.
With respect to the charge of failing to promptly report an injury and
properly filling out the accident report, the Organization states that Claimant
filled out the required form immediately after receiving medical attention.
The Organization does admit that Claimant failed to fully fill out the
form by failing to include a witness but argues that this is not sufficient
grounds for dismissal.
The Carrier's position with respect to the February 17, 1982, investigation
involving the insubordination charge is that the Claimant, by his own admission,
was proven guilty of insubordination. To support this contention, the Carrier
relies upon the following quoted testimony:
Claimant was asked:
"Did Mr. Perrymore give you instructions to go with him to the office
to see Mr. Green?^
Answer
"Yes . "
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Page 3 Locket No. 10203
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Question:
"Did you go to the office with Mr. Perrymore?"
Answer:
"No . "
Claimant was then asked:
"When you were called to the office and talked to Mr. Green and Mr.
Perrymore, did Mr. Green instruct you to go get your time card, make
it out, and bring it to him?"
Answer:
"He did.
0
Question:
"Did you do it?"
Answer
"I did not."
Question:
"Did you comply with the instructions of Mr. Green?"
Answer:
"I did not. Mr. Green did not give me just cause as to why I should
be sent home nor did he give me just cause why I should be pulled out
of service.,,
The Carrier argues that Claimant's dismissal for insubordination was justified
as Claimant's record reveals repeated incidents of failure to obey instructions.
With respect to the investigation of February 18, 1982, which dealt with
Claimant's failure to promptly report the injury allegedly sustained when Foreman
Perrymore attempted to get Claimant to go to Foreman Green's office on February
10, 1982, the Carrier contends that the Claimant's failure to promptly and
properly report this injury constituted an offense serious enough to warrant
his dismissal, particularly in light of Claimant's poor record.
It is not the function of this Board to substitute its judgment for that
of the Carrier's in discipline cases absent a finding that Carrier's action was
unjust, arbitrary, or capricious. After reviewing the record, this Board finds
that Carrier's action in dismissing the Claimant was not unjust, arbitrary, or
capricious and was, in fact, proper.
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Page 4 Locket No. 10203
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The Claimant, by his own admission, is guilty of insubordination by his
failing to obey the instructions of Foremen Perrymore and Green. When Claimant
did finally obey those instructions, it was with delay and challenge.
Claimant's record in his short term of employment is replete with incidents
of failure to obey instructions without challenging authority. Repeated failure
of employes to comply with instructions justifies dismissal. (See Second Division
Awards 7432; 6689; 6645; 6456; and 6050.)
Claimant's failure to promptly and fully fill out the accident form is a
serious offense justifying dismissal. (See Second Division Award 4526.)
The Carrier is responsible for all on-the-job injuries. Thus, Carrier
must be informed of all injuries immediately so that there is no question that
the injury occurred on the job. Additionally, if there is a dangerous condition
on the job which caused the injury, the Carrier must know about it immediately
so that it can be corrected. For these reasons, employes must not delay in
informing the Carrier of any injuries sustained on the job.
In Second Division Award 7655, it was stated:
"We have previously recognized that a Carrier is entitled to have its
employees complete personal injury forms totally and honestly. °'
Form the above-discussed reasons, Carrier's action in dismissing Claimant
was justified.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
~' o
Nancy .ever - Executive Secretary
Dated at Chicago, Illinois, this 22nd day of August 1984.