Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10700
SECOND DIVISION Docket No. 10723
2-SSR-CM-185
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( Brotherhood Railway Carmen of the United States and
( Canada
Parties to Dispute:
( Seaboard System Railroad
Dispute: Claim of Employes:
1. That under the current Agreement Carman W. E. Passmore was improperly
suspended from service September 23, 1982 to October 20, 1982.
2. That the Seaboard System Railroad Company was procedurally defective
in that they disciplined Carman Passmore by removing him from service
before an investigation was held.
3. That accordingly, the Seaboard System Railroad Company be ordered
to pay Carman W. E. Passmore for all time lost from September 23,
1982 to October 20, 1982, and that he he (sic) receive all other
benefits he would have accrued under a normal flow of circumstance
as if he had never been suspended, and that all mention of this
incident 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, W. E. Passmore, is employed by the Carrier, the Seaboard
System Railroad Company, at Winston, Florida. On September 23, 1982, the
Claimant was suspended from service and charged with insubordination as a
result of an incident that occurred on that day. On September 30, 1982, a
formal investigation of the insubordination charge was held; as a result, the
Claimant received a 20-day suspension effective September 23, 1982, through
October 20, 1982. The organization subsequently filed a claim on the
Claimant's behalf.
Form 1 Award No. 10700
Page 2 Docket No. 10723
2-SSR-CM-185
The Organization contends that the Claimant was unjustly disciplined and
that the Carrier violated Rules 32, 33, and Appendix Q of the controlling
Agreement. These portions of the Agreement provide, in part:
"Rule 32 - Discipline Hearings
No employee shall be disciplined without a fair hearing
by a designated officer of the Company. Suspension
in proper cases pending a hearing, which shall be prompt,
shall not be deemed a violation of this rule. If it is
found that an employee has been unjustly suspended or
dismissed from the service, such employee shall be reinstated with his seniority rights unimpaired and compensated
for the wage lost, if any, resulting from said suspension
or dismissal."
"Rule 33 - Representation
The Company will not discriminate against any employees
who from time to time represent other employees."
"Appendix Q
The Organization, with the cooperation of the local
management, will keep record of all overtime worked,
and when it is necessary to call or notify employees for
overtime the distribution of overtime will be handled
through mutual agreement between the local committee
and the local supervisor."
Specifically, the Organization contends that the Carrier's handling of
this matter was procedurally defective. This was not a proper case for
suspension pending a hearing: the Claimant was given an order that he could
not follow; he was not allowed to contact his Local Chairman for necessary
information; the alleged offense was not serious; and the Claimant was no
threat to himself, other employees, the Carrier, or the Carrier's property.
The Organization further asserts that the Claimant was suspended from
service without notice that it was pending a hearing. After the subsequent
investigation, the Claimant received a 20-day suspension although the investigation established that he was innocent of insubordination.
The Organization argues that it was impossible for the Claimant to carry
out the order that underlies this dispute, and that his Supervisor knew this.
Further, if the Supervisor had not unreasonably refused to allow the Claimant
to contact his Local Chairman, the Local Chairman could have supplied a copy
of the missing list that the Supervisor was seeking from the Claimant. The
Carrier therefore wrongly charged the Claimant with insubordination and
unjustly suspended him.
Form 1 Award No. 10700
Page 3 Docket No. 10723
2-SSR-CM-185
In addition, the Organization contends that the Claimant was fulfilling
his duty of maintaining overtime records, pursuant to Rule 33 and Appendix Q,
at the time that this dispute occurred. The overtime list disappeared from
the lunchroom, where the Claimant left it to respond to an order from his
Supervisor; all of the shop personnel have access to the lunchroom, so anyone
could have taken the list. Also, any hostility that the Carrier may have
harbored toward the Organization because of a strike settled just before this
incident does not justify the discipline assessed against the Claimant, an
Organization Representative.
Finally, the Organization contends that because the Carrier has not met
its burden of proof, the claim should be sustained; the Claimant's record
shall be cleared of all references to this dispute, and he should be made
whole for all losses that he suffered as a result of this matter.
The Carrier contends that the record establishes that the Claimant was
insubordinate in failing to follow his Supervisor's orders regarding the
overtime list. The testimony proved that the Claimant took the list, and
that his Supervisor ordered him to return it. Further, the Claimant should
not have left the list in the lunchroom when he responded to his Supervisor's
instructions. Finally, the Claimant did not follow his Supervisor's order to
return the list. The Carrier asserts, therefore, that the assessed discipline was lenient.
Finally, the Carrier contends that the discipline was neither arbitrary
nor capricious, but justified by the Claimant's conduct. The claim is
without merit, asserts the Carrier, and should be denied in its entirety.
This Board has reviewed all of the evidence and testimony in this case,
and it finds that the Claimant was afforded all of his procedural rights
during the hearing process. Although the Organization argues that the
Carrier wrongfully held the Claimant out of service pending a hearing, it is
well established that insubordinate behavior is one of the "proper cases"
that justifies a Carrier suspending an employee pending a hearing. (See
Second Division Award 7150.) As we held in Second Division Award 5360, the
Claimant had shown himself to be antagonistic to his Supervisors, and
therefore the Carrier had the option, in this type of "proper case," to
remove the Claimant pending the hearing.
This Board has reviewed the hearing process, and we find that the
Claimant and the organization were allowed to confront the witnesses against
the Claimant and to argue the Claimant's case with all of his rights
protected. At the end of the hearing, the Claimant even admitted that he had
the opportunity to cross-examine witnesses and to present witnesses on his
own behalf.
With respect to the merits of the substantive dispute, there is
sufficient evidence in the record that the Claimant was insubordinate when
he removed the overtime list and failed to either retain it or at least
furnish a copy of it to his Supervisors. Hence, the Carrier had a right to
impose discipline on the Claimant.
Form 1
Pa ge 4
Award No. 10700
Docket No. 10723
2-SSR-CM-185
This Board does not second-guess the amount of discipline issued a
Claimant by a Carrier unless that action is unreasonable, arbitrary, or
capricious. In this case, a 20-day suspension is clearly excessive given the
nature of the infraction and the Claimant's prior work history. Hence, this
Board hereby reduces the discipline to a 10-day suspension and orders that
the Claimant be made whole for the lost time and that his personnel record be
amended accordingly.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
~~/
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 8th day of January 1986
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