On April 10, 2007, Claimant was notified that he had been found guilty as charged and was dismissed.
It is the Organization's position that the Carrier erred in dismissing the Claimant as he was not guilty of insubordination. According to it the Claimant was asked to remove the belt rails from BM 3365 on March 20, 2007 with a grinder. It argues that Claimant had a legitimate safety concern about using a grinder for the. project and asked Supervisor Silk how the task could be done safely, but rather than explaining to Claimant how it could be accomplished safely the Manager chose to pull the Claimant out of service and sent him home. The Organization further argued that the Claimant did not say he would not do the job, he instead stated that he was afraid to use to grinder as it was unsafe. The Organization concludes by arguing that the Carrier over reacted in its dismissal of the Claimant over a legitimate safety issue and because of that the discipline should be rescinded
It is the position of the Carrier that prior to the incident in dispute the Carmen in Lawrence, MA, had been using a torch to remove the belt rails and because the torches were putting holes in the side sheets it wanted Carmen to use grinders to perform the task of removing the belt rails and related spot welds. On March 20, 2007, Supervisor Silk instructed Claimant to use the grinder to remove the spot welds and belt rails from inside of the box car. Supervisor Silk testified that the Claimant immediately decided that he was not going to perform this task, even before examining the Carrier's grinders. The Carrier argued that Claimant took the position that the grinder was not intended to perform the task and would not listen to Supervisor Silk's explanation that the grinder was designed to handle the work and because of his adamant refusal to do the work the Supervisor had no choice but to send him home.
The Carrier also argued that the transcript reflects the fact that General Manager Austin (36 years seniority) testified that he had approved using the grinder for the removal of belt rails and spot welds in the method Supervisor Silk had instructed the Claimant to use. Additionally, it pointed out that Supervisor Silk testified, that after the Claimant left the property Carman Eric Olson continued to Form 1 Award No. 13965
use a grinder to accomplish the work and took no exception nor did he voice any safety concern and that everyone else at the Lawrence facility had been asked to use the grinders for the same task and no had a problem or concern over the methodology of work. Last, it argued that the discipline assessed was justifiable and appropriate and should not be disturbed.
The Board has thoroughly reviewed the record and finds that the Claimant admitted he refused to use the grinder. Claimant's defense for not using the grinder is that if he had used the grinder he would have placed himself in risk of serious injury. This Board has repeatedly recognized the fact that employees can legitimately refuse to do a task that place them in a position of potential serious injury. Therefore, the question at issue in this dispute is whether or not Supervisor Silk's directive to Claimant placed the Claimant in "harms way".
Review of the record reveals that the Car Department at Lawrence, MA, has used the same type of grinding wheels to perform similar or exact work for years and there is no evidence of any mishaps resulting from their use. The transcript further indicates that Claimant should have known that the grinding wheels could be used to cut and grind in the manner Supervisor Silk instructed, but in this instance Claimant wanted to use a torch, because it was easier and less work for him. It is clear that Claimant had no concern about the cost any delays associated with his choice of tools would have and he did not like having Supervisor Silk tell him how to perform his work. Claimant's testimony on pages 96 - 98 shows that he has the opinion that there is nothing a Supervisor can say to make him do a job if he believes a work method is not safe even after being shown that it is safe. At the time of this incident Claimant behaved in an obstinate manner when he had no legitimate safety concern. No proof was offered that Supervisor Silk's instructions would have placed Claimant in jeopardy. The testimony of the Carrier's witnesses was far more credible that that of the Claimant's self-serving testimony which has proven that Claimant was guilty of insubordination.
The only issue remaining is whether the dismissal was appropriate. At the time of the offense the Claimant had less than a stellar work record. The Board finds and holds that dismissal is appropriate in this instance because it was not arbitrary, excessive or capricious. The discipline will not be set aside. Form 1 Award No. 13965