NATICAL RAILROAD ADJUSTMENT HOARD
THIRD DIVISION Docket Number bbl-21620
Robert M. 0'Hrien, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
Texas an% Louisiana Lines
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The dismissal of Laborer Clovis Alexander on April 18,
1975
was without just and sufficient cause (System File No.
MW-75-36).
(2)
The charge be stricken from the claimant's personal
record and he shall be allowed pay for all time lost as per Agreement
Rule 14(f).
OPINION OF HOARD: By letter dated April 18,
1975,
Claimant, a Laborer
with appwoximately
4*
years service with the
Carrier, was dismissed from service as a result of a verbal altercation
he had with his Foreman; failure to comply with work instructions issued
by his Foreman; and for being quarrelsome. Following a hearing held
relative to the foregoing charge, Carrier affirmed their discharge of
Claimant due to his alleged violation of Rule 801 of General Regulations
of Rules and Regulations for Maintenance of Way and Structures. On
July 14, 1975,
Claimant was returned to service without pay for time lost
but without prejudice to the Organization's right to progress the instant
claim for the compensation that Claima lost between April 18,
1975
and
July 14,
1975.
The evidence adduced at Claimant's hearing was somewhat
conflicting, Gang Foreman Johnson testified that on April
18, 1975
he
instructed the Claimant to come down off the car he was standing on and
pick up scrap burrs as other members of the gang were doing, but that
Claimant refused. Johnson further claimed that Claimant immediately
began cussing him. Johnson denied cussing at the Claimant. Johnson's
testimony was corroborated by Overhead Crane Operator Pilkenton who
declared that he heard Johnson give instructions to Claimant but that
Claimant refused to comply. He further stated that he did not hear
Johnson using profanity, though he did bear Claimant cussing Johnson.
Claimant denied that he refused to abide by Johnson's orders,
and asserted that he picked up scrap burrs on April
18, 1975 as
instructed.
However, he conceded that he had indeed cussed Johnson but only after
Johnson had cussed him first. Claimant's testimony was corroborated by
his cousin, Caffery Alexander and by Laborer Joe
Hall.
Award Number 21556
Docket Number
W-21620
From the foregoing, one can easily discern that the evidence
adduced at Claimant's hearing was contradictory. Yet we conclude that
there was substantial evidence produced to support Carrier's allegation
that Claimant had been insubordinate and quarrelsome on April
18, 1975
in violation of Rule
801.
We must reiterate that it is not the province
of this Board to weigh the evidence adduced nor to resolve any conflict
in the testimony of the respec° ve witnesses. Rather, we are limited to
an examination of the evidence n order to ascertain therefrom whether
Carrier's decision was based on substantial evidence. Applying that
test to the record before us, this Board finds that there was, in fact,
substantial evidence to support the charges preferred against Claimant.
While the organization asserts that the
90
day suspension given
Claimant was not justified, we must respectfully disagree. Insubordination
is generally recognized in this industry as a dismissible offense.
Moreover, this is not the first time that Claimant has been found
insubordinate. On July
27, 1974
a similar incident occurred between
Claimant and Foreman Johnson. At that time Carrier warned Claimant that
if he could not follow the directions of his authorized supervisors
"severe disciplinary action will be taken." Accordingly, Claimant was
duly warned that any further insubordination would not be tolerated.
In the light of this, we do not consider a 90 day suspension excessive
or unreasonable.
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;
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.
ATTEST:
aeslova
Executive Secretary
NATIONAL RAILROAD
AD~I75
-TTA~VT BC
By Order of Third Division
Dated at Chicago, Illinois, this 31st day of May
1977.