Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10234
SECOND DIVISION Docket No. 10265
2-BN-EW-185
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Burlington Northern Railroad
Dispute: Claim of Employes:
1. That in violation of the controlling Agreement, Rules 18 and Appendix
"C" Section 12(b) in particular, the Burlington Northern Railroad
denied Electrician P. O. Smith preference to available light work in
his line and ignored his seniority in assigning vacation relief work.
2. That the Burlington Northern Railroad failed to meet its required
burden of proof to justify its actions in the subject case and in
violation of Rule 35(g), unjustly suspended Electrician P. O. Smith
for ten (10) days simply because he would not expose himself to further
back injury or relinquish his contractual right, earned by his long
and faithful service, to seniority preference to such light work
available in his line.
3. That accordingly, the Burlington Northern Railroad be ordered to
compensate Electrician P. 0. Smith eight (8) hours pay at the prorata rate for each of the ten (10) days he was unjustly suspended
from service beginning April 26, 1982 and ending May 5, 1982. Claim
also includes compensation for and/or restoration of all lost vacation
benefits and any other rights and privileges to which he is entitled
under prevailing schedule rules, agreements or laws and that the mark
be removed from his personal record.
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.
The Claimant has been in the service of the Carrier for 23 years. He was
employed as an Electrician at the Carrier's 14th Street Coach Yard, in Chicago,
Illinois, at the time of the events giving rise to the instant claim.
As a result of an investigation that was held on April 1, 1982, the Claimant
was suspended from service for 10 days commencing April 26, 1982 for absenting
himself from duty without proper authority and for failing to comply with instructions
from proper authority on March 19, 1982.
Form 1 Award No. 10234
Page 2 Locket No. 10265
2-BN-EW-185
The record discloses that the Claimant was given a work assignment by his
Foreman on March 19, 1982. It is undisputed that the Claimant refused to perform
the duties, as assigned, after which he left work without obtaining permission
from supervision. The Claimant provided no reason for refusing to perform his
assigned duties.
The Organization argues that the Claimant's actions were justified due to
a previous back injury which occurred while performing the same duties to which
he was assigned. The Carrier is not required to speculate on the reasons why
an employee refuses to perform assignment, and then absents himself from service
without receiving permission to do so. Furthermore, there is no evidence in
the record to warrant the conclusion that the Claimant had back problems.
Rule 18 which provides, in relevant part, that an employee whose long and
faithful service entitled him to "be given preference to such light work in his
line as he is able to handle", is of no assistance to the Claimant. It is
unreasonable for an employee to invoke the benefit of Rule 18 (and to do it
silently), at the instant a Supervisor gives an employee an order to perform a
duty which he considers not to his liking. In the circumstances, it was the
Claimant's responsibility to comply with the order and grieve later. By failing
to do so, the Claimant violated Rules 570 and 576 of the Safety Rule by absenting
himself "from duty *** without proper authority" and by failing to "comply with
instructions from proper authority".
Based upon the record, the Board is persuaded that the suspension of the
Claimant for ten days was not arbitrary and unjust; nor was the penalty imposed,
an abuse of managerial discretion.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
-40~
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of January 1985.
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