Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
_ Award No. 12808
Docket No. 12679
95-2-93-2-74
The Second Division consisted of the regular members and in
addition Referee Elizabeth C. Wesman when award was rendered.
(Brotherhood of Railway Carmen Division -
( Transportation · Communications International
( Union
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (L&N)
STATEMENT OF CLAIM: "Claim of the Brotherhood that:
1. Carrier violated the current controlling
agreement when Caiman T. L. Conway was
unjustly suspended 30 working days as a result
of investigation held on September 20, 1991.
2. Carrier shall now compensate Carman T. L.
Conway for all lost wages with 6o annual
interest and expunge his record with all
rights unimpaired as a result of the unjust
The Second Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employee 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 holds a regular assignment as a carman on the
Louisville and Nashville Railroad Company (CSXT) at Mobile,
Alabama. On September 12, 1991, Claimant was called in to fill a
first shift Trainyard Car Inspector job vacancy. At the end of his
shift, Claimant and the Trainmaster had a verbal exchange
concerning unlocking tracks so the shop cars could be switched out.
As a result of that exchange, Claimant received the following
Notice of Investigation dated September 13, 1991:
;_._ Form 1 Award No 12808
`, Page 2 Docket No. 126'79
- 95-2-93-2-74
"You are directed to attend an investigation which will
be held in the Conference room at Sibert Yard office on
Friday, September 20, 1991 at 9:00 AM (Central Standard
Time) to determine your responsi-bility, if any, in
connection with engaging in insubordination in that you
refused Trainmaster M.A. Murray's instructions to get the
north end car inspector to take the Blue Flag and Lock
off of Track #19 on the North end of Sibert Yard, Mobile,
AL, at approximately 3:15 PM (Central Standard Time) on
Thursday, September 12, 1991."
Following the hearing, Claimant was notified that he was found
guilty of the charge and was assessed 30 working days' suspension.
Claimant's discipline was appealed and processed up to and
including conference between the Parties on September 4, 1992,
after which it remained unresolved.
At the outset, the Organization maintains that Carrier failed
to comply with Rule 34 of the Agreement between the Parties; to
wit, Claimant was not afforded a "fair hearing" as stipulated in
that Rule. A review of the transcript does not support the
(`.,' Organization's position. It is apparent that Claimant understood
the charges and was able to formulate an informed defense.
Moreover, there is no indication on the transcript before the Board
that the Hearing Officer was other than objective.
With respect ·L-o the merits of the claim, the Organization
maintains that, irrespective of the verbal exchange, since Claimant
actually performed the work at issue he cannot be found to have
been insubordinate. Carrier disputes that contention, and notes
that Claimant's performance of the task at issue is moot in view of
his initial insubordination. The Organization also contends that
Carrier has not met its burden of persuasion, since the
determination of credibility among directly opposing positions was
made by the Hearing Officer.
The Board is in accord with Carrier regarding the irrelevance
of actual performance of a task following an act of
insubordination. Employees are not free to respond to orders in a
disrespectful or insubordinate manner simply because they intend to
follow the orders in the end. With respect to the determination of
credibility, it is a long established tradition on this and other
Boards that we will not normally substitute our judgement of
credibility between opposing witnesses for that of the Hearing
Officer, unless there is compelling evidence in the transcript to
support our doing so. In the instant case, there is insufficient
evidence to contradict the Hearing Officer's determination of
credibility.
;_
Form 1 Award No. 12808
1 Page 3 Docket
No.
12679
95-2-93-2-74
AWARD
Claim denied.
0 R D E R
This Board, after consideration of the dispute identified
above, hereby orders that an award favorable to the Claimant (s) not
be made.
National Railroad Adjustment Board
By Order of Second Division
r. ,.)
Dated at Chicago, Illinois, this 26th day of January 1995.