Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10335
SECOND DIVISION Locket No. 10350
2-WT-CM-'85
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
( A. F. L. - C. 1. 0.
Parties to Dispute:
( Washington Terminal Company, Washington, D. C.
Dispute: Claim of Employes:
1. That the Washington Terminal Company violated the controlling agreement
when"they unjustly suspended carman apprentice K. J. Conklin as a result of
investigation held on June 21, 1982.
2. That accordingly the Washington Terminal Company be ordered to reinstate
Mr. Conklin with compensation for his net wage loss, seniority and vacation
rights unimpaired, and made whole any loss due to health and welfare benefits not
continued.
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 instant claim arises out of a dispute that occurred on the night of May
19, 1982. On that date the General Foreman, J. E. Lewis, was instructed to inform
the Claimant, K. J. Conklin, to attend a safety remedial training class to be
held at 8:00 a. m. on the next day, May 20, 1982. At around 7:00 p.m., the
Claimant was so instructed. Shortly thereafter he returned to the General Foreman
and indicated that he had a previous doctor's appointment scheduled on the 20th
and that he and his wife had to attend. Following that statement and conversation
he called at home other supervisory personnel including the Superintendent of Car
Maintenance, P. H. Cooley, Jr. During his conversations with Mr.°Cooley, Claimant
indicated again that he had a prior commitment with his wife at the doctor's for
the 20th and that he could not attend. He was asked if it was an emergency and
Claimant indicated no emergency condition. He was instructed to be present at
the remedial safety class the next morning.
Form 1 Award
No. 10335
Page
2 Docket No. 10350
2-WT-CM-'85
On May
28, 1982, the Claimant
was ordered to attend a hearing,
which,
after
postponement, was
held on
June
21, 1982.
Claimant was charged with being
insubordinate, pursuant to Rule "N" when he
failed to
obey the order of his
supervisors to attend the remedial safety class on May
20, 1982.
A
review of
the
record clearly indicates that the order was given and that
the Claimant
failed to
obey the order. On
behalf of
the Claimant it is maintained that such orders were
in the past put in written posted notice, but nothing in the
record substantiates
that such practice was policy or procedure when only one or two employees were
involved, as in the instant case. It is further
argued that
there is no agreement
provision requiring Claimant to attend class and in particular in his off duty
hours.
While that
may be correct, there is rule support for following the orders
of a supervisor and that is the central issue in this case.
This Board has
studied the hearing
and finds that the Claimant's rights to a
fair and impartial
proceeding were
protected. It has considered carefully the
testimony relating to conversations
between the
Claimant and Carrier Supervisors.
A close evaluation of the instant case indicates that the request to attend the
safety class was not
made in
a timely manner to the Claimant. However, in the
absence of
any
rules
or provisions on time and conditions of notice, this
Board finds
that Carrier personnel violated no Rules and had attempted to ascertain
the seriousness
of the disruption to Claimant's life versus the needs of the
Carrier. Finding no
evidence to
convince them at the time of emergency or other
reasons to
release and
reschedule Claimant; they required attendance. The Claimant
indicated that; he "had a
prior commitment with a physician the following morning
on my own time prior to 4:00 p.m." This Board notes that
probative evidence
neither substantiates
a physician appointment, nor a time conflict of a previous
appointment
which conflicted with
the safety meeting at
8:00
a.m. on May
20,
1982.
On the
subject of
insubordination it has been well established that unless
an employee is subject to an immediate
threat to
his safety, he must carry out
the orders of
his supervisors. Even if an order to attend given twelve hours
prior was a seeming abuse of managerial discretion,
the Claimant
had to object in
an appropriate manner. In considering
the dispute at
bar it weighs heavily upon
the
Board that
an employee who disputes the orders of a superior must first comply
with
the order and
then file an appropriate grievance. This is a long standing
rule of this industry which has
been held in
numerous cases unless it posed
imminent danger to the employee or public which does not
hold in
the instant case
(see Second Division Awards
7442, 7563, 7573, 7717, 7767).
In this dispute
there is
no question but that the Claimant was guilty of
insubordination, in that he
did not
comply with the order and grieve later. In
considering
the discipline
imposed
this Board has
carefully weighed the
issue of
managerial discretion in its notification to Claimant, with the lack of probative
evidence
submitted by
the Claimant to verify an important conflicting morning
appointment with a physician. In light of
the circumstances
surrounding this
case, as well as
the past
record of the Claimant
which
was
used
solely to
determine discipline, this Board will
not substitute its judgment for Carrier, as
the discipline
assessed was not arbitrary, capricious or an abuse of
discretion..
Form 1
Page 3
Claim denied.
4~
4
Attest
Award No. 10335
Docket No. 10350
2-WT-CM-'85
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
- Executive Secretary
Dated at Chicago, Illinois, this 13th day of March 1985.