Form 1 NATIONELL RAILROAD ADJUSTMENT BOARD Award No. 11237
SECOND DIVISION Docket No. 11284
2-IHB-CM-'87
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
(Brotherhood Railway Carmen of the United States
(and Canada
Parties to Dispute:
(Indiana Harbor Belt Railroad Company
Dispute: Claim of Employes:
1. That the Indiana Harbor Belt Railroad Company violated the terms
and conditions of the current working Agreement, specifically Rules 39, 36,
48, 31, 20, 35, 1, 18, 16, 11, 10, 7 and 6 and the Understanding Relating to
Physical Examinations of Employes, when they suspended Carman J. Sanders for a
period of ninety (90) days. Sixty (60) days, October 14, 1985 through December 12, 1985 were actual suspension. Thirty (30) days were record suspension.
Said suspension is totally unreasonable, unfair, unjust, arbitrary, capricious, and an abuse of managerial discretion.
2. That the Indiana Harbor Belt Railroad Company be ordered to compensate Carman J. Sanders for all time lost, including all overtime and all
holiday pay he would have been entitled to had he not been unjustly suspended.
Also, that his record be cleared of the sixty (60) day actual suspension and
the thirty (30) day record suspension as a result of the above Agreement violations.
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 ,tune 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.
At the time of the occurrence giving rise to the dispute herein
Claimant was employed by the Carrier as a Carman, and was Local Chairman of
the Organization. On August 23, 1985, he was instructed to attend an Investigation scheduled for August 29, 1985, on two charges:
Form 1
Page 2
Award No. 11237
Docket No. 11284
2-IHB-CM-'87
"l. Insubordination to Manager, Car Repair and
Inspection D. A. Schiewer on Friday, August 16,
1985, at approximately 3 p.m., by refusing a direct
order to submit to a urinalysis at the Southeastern
Medical Clinic during your examination in connec
tion with personal injury that occurred at the Blue
Island Repair Track.
2. Being an accident-prone employee in that you
have sustained seventeen (17) personal injuries;
three (3) of which have been lost-time, since March
6, 1969, also past informal hearings and formal
investigations placing you on notice that the
carrier would, and I quote, in part:
'.
. . keep in mind that further disregard of safety rules and continuation of
personal injuries will lead to another
investigation and whatever measures
necessary to ensure your safety as well
as that of others."
By agreement, the Investigation was postponed to September 4, 1985,
recessed, and reconvened on September 13, 1985. A copy of the Transcript of
the Investigation has been made a part of the record. Following the Investigation, Claimant was assessed discipline of sixty days actual suspension and
thirty days deferred suspension. The Transcript of the Investigation is
lengthy, but we do not consider that Claimant was deprived of any of his substantive rights. He was present throughout the Investigation and was represented.
The record shows that Claimant suffered a personal injury about 1:30
P.M., August 16, 1985. He was taken to Carrier's Medical Examiner at the
Southeastern Medical Clinic. He was accompanied to the Medical Clinic by
Carrier's Manager of Freight Car Repairs and Inspection, Claimant's superior
officer, who testified in the Investigation that Claimant was treated for his
injury, which was diagnosed as a bruised injury to his right big toe. He also
testified that members of the Medical Staff at the Clinic requested Claimant
to submit to a drug screening test, which Claimant refused, and that he
instructed the Claimant to take the drug screening test and Claimant refused.
Without detailing all the evidence, we find that substantial evidence
was adduced in the Investigation in support of the charge of insubordination
against Claimant. The "substantial evidence" Rule was set forth by the
Supreme Court of the United States as:
"More than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." (Consol. Ed.
Co. vs Labor Board 305 U.S., 197, 229.)
Form 1 Award No. 11237
Page 3 Docket No. 11284
2-IHB-CM-'87
(Second Division Awards
Nos.
6419, 11179, 11180.)
Claimant clearly refused to comply with an order of his superior officer.
No
employe may properly decide for himself the instructions that he
will comply with and those that he will ignore. It was Claimant's obligation
to comply with the instructions given him by his superior officer, and then
handle through the grievance procedure if he considered that his rights were
violated. The record shows that Claimant did subsequently submit to a drug
test on September 8, 1985, and returned to work the next day.
Any allegation as to Claimant's civil rights having been violated is
not properly addressed to this Board.
We find and hold that Part (1) of the charge of August 23, 1985, was
sustained.
As to Part (2) of the charge, the record shows that Claimant had
seventeen injuries over a period of fourteen to fifteen years of service, far
in excess of the average number of injuries of Car Department employes of the
Carrier. One employe had more personal injuries than Claimant - twenty over a
period of thirty-eight years of service. The figures are convincing that
Claimant was accident prone. This Board has upheld severe discipline, including dismissal, in such cases. In Award No. 8912 of this Division, involving the same parties as herein, it was held:
'.
. . the Board finds that the Carrier is not
required to retain in its service an employe who
cannot, or does not, perform his work with safety
to himself or to other employes."
See also First Division Award No. 20438, and Third Division Awards Nos. 24534,
25672, 25895.
Considering the seriousness of the charges: (1) insubordination, and
(2) being an accident prone employe, we find the discipline imposed not to be
arbitrary, capricious or in bad faith. There is nothing to show that Claimant
was discriminated against because of his actions as Local Chairman of the
organization.
Form 1 Award No. 11237 '
Page 4 Docket No. 11284
2-IHB-CM-'87
AWARD Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J ver - Executive Secretary
Dated at Chicago, Illinois, this 1st day of April 1987.