NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20149
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Northwestern Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of C. D. Dennison from service for alleged violation
of Rules 801, 810 and 811 was without just and sufficient cause and on the basis
of unproven charges (System File NWP file 011-181 (D)).
(2) Mr. C. D. Dennison be reinstated with seniority, vacation and all
other rights unimpaired and that he be compensated for all wage loss suffered in
accordance with Rule 25,
(3) The Carrier shall also pay the claimant six percent (6%) interest
per annum on the monetary allowance accruing from the initial claim date until
paid.
OPINION OF BOARD: Claimant, a carpenter-helper on B&B Gang No. 10 headquartered
in camp trailers at Island Mountain, California, was dismissed
from the service of Carrier on January 5, 1972 for alleged violation of the follow
ing rules of the General Rules and Regulations of the Carrier:
"Rule 801 - part thereof reading:
'Employees will not be retained in the
service who are careless of the safety
of themselves or others, indifferent
to duty, insubordinate . . .'
"Rule 810 - as reading:
'Employees must report for duty at the
prescribed time and place, remain at their
post of duty and devote themselves to
their duties. They must not absent themselves from their employment without proper
authority.'
"Rule 811 - reading as follows:
'Employees must not absent themselves from
their places, substitute others or exchange duties without proper authority.1"
Award Number 20030 Page 2
Docket Number MW-20149
An investigative hearing into the charges was held on January 17, 1972, in which
Claimant and his representative participated. As a result of the investigation,
the dismissal was affirmed by letter dated January 26, 1972. The claim was processed through the app
to this Board.
The threshold question for this Board is a procedural objection advanced by Carrier, viz, a motion t
not perfected in the timely manner prescribed by Rule 25 of the Agreement between
the Carrier and Petitioner. The uncontroverted record clearly shows that this
procedural objection first was raised in the Carrier's Ex Parte submission to this
Board. Under our rules and a long line of awards, such a procedural issue raised
for the first time at this level comes too late. Accordingly the motion to dismiss must be and is de
Turning now to the merits of this claim, the alleged violations flow
from the following facts: On January 4, 1972, Claimant was engaged in cleaning
duties around the oil shed. While performing this: operation, Claimant was instructed by B&B For
Claimant informed Mahn that he did not wish to w-:i- his hair net, which was his
private property and not Carrier-issued safety equ·.pment; and, in tact, by word
and deed refused to wear his hair net. The foregoing facts are not contested
on the record, but subsequent developments are subject to conflicting versions
therein.
Claimant alleges that Mahn instructed him to "go home", which instruction
literally performed by departing the job site for his residence. Mahn testified
that he advised claimant to return to his headquarters trailer at Island Mountain.
In any event, Claimant's departure from his duty post in these circumstances
apparently constitutes the gravamen of the charged violations of Rules 810 and 811.
A careful review of the record and reading of the Rules in question
indicate that while there are some ambiguities regarding the issues of safety and
unauthorized absence, there is no doubt that Claimant refused to follow the orders
of his superior. It is a recognized principle of arbitral law, and especially by
this Board, that the duty of an employe is to obey a reasonable order; and, if
he disagrees with such order to seek redress through the grievance machinery of
the agreement. (See Awards 7921, 5170, 4886, 8712, 15828, 16286). There are not
sufficient mitigating eircrnatmces presented on this record to support a conclusion other tha
to support the imposition of discipline and the action of the Carrier with respect
thereto cannot be deemed arbitrary, caprieious,'or an abuse of discretion.
In view of the foregoing considerations, we will dismiss the claim.
Award Ntmber 20030 Page 3
Docket Number MW-?.0149
FIRDIf^S: The Third Division of the Ad,just::cnt Board. ton the whole record
and all tae evidence, finds and holds:
That the parties waived oral hearii;g;
That tha Carrier and the 1lrsployes involved in this dispute are
respectively Carri:,r
rhd
1:amlo;!s within the :.L.aning of the &ailway Labor Act,
as approved June 21,
114;
That this Division of the Ad,justzcut Board has jurisdiction over the
dispute involved t:ercin; and
That the claim be dismissed.
A W A F D
Claim dismissed.
PIATICNr1 RAI':I<'X AIT_STI:NT EfkRD
ry
Order of Third Division
ATTEST:
E7ecstive Sc^retary
Dated at Chicago, Illinois, this 20th day of November 1973.