NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20552
Joseph A. Sickles, Referee
(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and
( Station Employes
PARTIES TO DISPUTE:
(George P. Baker, Richard C. Bond, and Jervis Lang( don, Jr., Trustees of the Property of
( Penn Central Transportati)n Company, Debtor
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-7441) that:
(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A-
days suspension on D. M. Light, Auto Messenger Clerk, at EA Yards, 'Buffalo,
N.Y., Northern Region, Buffalo Division.
(b) Claimant D. M. Light's record be cleared of the charges
brought against him on January 2, 1973.
(c) Claimant D. M. Light be compensated for wage loss sustained
during the period out of service.
OPINION OF BOARD: Claimant was notified to attend an investigation concern
ing an allegation that he refused to perform the duties
of his position.
Subsequent to investigation, Claimant was assessed a thirty (30)
day suspension.
On the evening in question, Claimant specifically refused to operate a rented vehicle because it
to drive the vehicle. Claimant persisted in his refusal after receiving a
direct order to drive the vehicle. It is necessary for Claimant to drive a
vehicle in order to properly perform his regular duties.
The issue is framed at Page 3 of the Ex-Parte Brief:
"The questions to be decided in this case are whether
or not the Claimant can be held to have been insubordinate
in declining to operate the Carrier's motor vehicle in violation of the New York State Motor Vehicle
...."
Award Number 20741 Page 2
Docket Number CL-20552
When Claimant refused to comply with an instruction because obedience would have "violated the l
that the act was unlawful. This is quite apart from the concept that an
employee should comply in the first instance and then submit a grievance.
Our review of the record fails to reveal that Claimant has made
such a showing. In fact, the contrary appears to be the case. A Court of
competent jurisdiction, in the geographic area involved, stated, in People
v. Simon, 33 N.Y.S. 2d 14:
"If the Legislature intended that a resident operator
of a motor vehicle should 'carry' the certificate of license
with him, it would have said so. Therefore, there is no duty
resting upon such an operator to do so; he need only 'produce'
the certificate or 'exhibit' the license upon a proper 'demand'.
The rule as to operators' licenses has been explained
thus: Failure to exhibit an operator's license for a motor
vehicle is not the basis for a conviction, as 'the statue
quoted prescribes a rule of evidence only, and the presumption
which it affords' may be overcome by uncontradicted evidence
that the operator is properly licensed. People on Complaint
of Keegan v. Meyer, 194 App. Div. 822, 186 N.Y.S. 434, 435.
Here, the same rule should obtain in the production of
a certificate of registration: Failure to produce a certificate of registration for a motor vehicle
for a conviction, as subdivision 4 of Section 11 quoted, supra,
prescribes a rule of evidence only, and the presumption of
guilt may be rebutted by uncontradicted evidence of proper
registration, as by the subsequent production of the certificate itself."
The Organization has raised certain procedural questions dealing
with the conduct of the investigation. Although there were certain rulings
which excluded testimony, they dealt with the condition of a different
vehicle. We do not find, under this record, that the Claimant's procedural
rights were violated.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor
Act, as approved June 21, 1934;
Award Number 20741 Page 3
Docket Number CL-20552
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
~·W
Dated at Chicago, Illinois, this 30th day of May 1975.
I