The Second Division consisted of the regular members and in addition Referee William R. Miller when award was rendered.
(Brotherhood of Railway Carmen Division of TCIU PARTIES TO DISPUTE:
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.
On July 12, 2006, Carrier notified Claimant to appear for a formal Investigation on July 21, 2006, which was postponed and subsequently held on August 21, 2006, concerning the following charge:
"This Notice of Hearing is issued to investigate and place your responsibility, if any, in connection with the following, but not limited to the charge(s) below:
On September 27, 2006, Claimant was notified that he had been found guilty as charged and was assessed a ten calendar day suspension with a requirement upon his return from suspension to attend a one day paid safety training class.
It is the position of the Organization that Carrier erred in suspending the Claimant. It argues that Claimant had a legitimate safety issue when he questioned the safety of three adult men riding in a pickup for two and one-half to three hours, one way to Mattemwakeag from Waterville because there was a radio pack mounted on the hump in the middle of floorboard which forced the person sitting in the middle to put his feet towards the right side. Additionally, the person in the middle only had a lap belt with no shoulder strap. It also argues that Claimant was not disrespectful or insubordinate to his immediate Supervisor Mr. Nava and only wanted a ruling from Superintendent Gray as to whether he thought transporting three men under the aforementioned conditions was safe. When he received the ruling, he obeyed Mr. Nava's directive. Furthermore, it states that Carrier contradicted itself when it told Claimant he would face a suspension if he did not follow its instructions to get in the truck and go to the derailment and then when he did. as instructed it still suspended him. Last, it argues double jeopardy because Claimant was given a ten calendar day suspension and then after it he was required to attend a one day safety training class.
Carrier argues there is no validity to the Organization's arguments. It submits that Claimant is guilty as charged. It argues that the record establishes that the Claimant did not take issue with Mr. Nava's order because of a legitimate safety concern. Rather, he would not comply with the order based on a comfort issue. It states that Superintendent of Mechanical's testimony indicates that the Claimant initially complained he did not want to ride in the truck because Mr. Nava was a smoker and then complained of having to ride in the truck with two other occupants at which time he became belligerent. It further argues that had the Claimant not agreed to ride in the truck after speaking with Mr. Gray, Assistant Superintendent, Waterville Mechanical, he may have been subjected to a different degree of discipline. In conclusion, it states there was no double jeopardy as the ten day suspension with the one day of training was all part of the singular discipline that was issued. Form 1 Award No. 13958
The Board has reviewed the transcript and record of evidence and finds that on June 26, 2006, Claimant was instructed by Assistant Manager Nava to go to Winn, Maine, to assist in re-railing a freight car derailed on the main line. After being given those instructions Claimant complained about having to ride in a pickup with three men because it would be cramped account of a radio being on the floor. Claimant's demeanor was essentially obstinate and was confirmed by Mr. Nava's written statement which reads in part as follows: "exact words was that if he had to cram into the truck he would stay here and we would have to get someone else to go." Testimony at the Investigation revealed that the truck was a full size pickup with a bench seat designed to accommodate three adults with seat belts and that it was registered and had passed the required State of Maine inspection as being safe to operate on the highway. Testimony further confirmed that Claimant walked away from his immediate Supervisor rather than obey his instructions, after which he sought out his Local Representative and then called the Assistant Supervisor who ordered him to follow Mr. Nava's orders after which he complied.
obeying orders were not met. The record indicates there was no legitimate basis for questioning the safety of having three men ride in the aforementioned truck. The complaint made by the Claimant was one of comfort versus safety raised under the guise of a safety issue. We agree that the trip may not have been as comfortable with three people as with two, but there was no safety issue nor was there even a good argument for raising the question. Claimant's behavior was not appropriate and it is clear that the Carrier has met its burden of proof that he was guilty as charged. Claimant would have been wise to have "obeyed now, and grieved later".
The only issue remaining is whether the suspension was justified. The Board finds and holds that the suspension was appropriate in this instance because it was not arbitrary, excessive or capricious. The discipline will not be set aside. Form 1 Award No. 13958
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.