NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-21356
PARTIES TO DISPUTE: (Brotherhood of Railway, Airline and Steamship
(Clerks, Freight Handlers, Express and Station
(Employees
(
(The Pittsburgh and Lake Erie Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood;
GL-7916,
that:
(a) The Carrier violated the Rules Agreement, effective September
1,
1946,
particularly Rule 20, when it assessed discipline of 15 days suspension
on R. P. Cook, Third Trick Crew Dispatcher Centralized Crew Dispatching Office,
Pittsburgh, Pennsylvania.
(b) Claimant R. P. Cook's record be cleared of the charges
brought against him on
July 16, 1974.
(c) Claimant R. P. Cook be compensated for wage loss sustained
during the period out of service.
OPINION OF BOARD: Claimant was employed in
July 1974
as Crew Dispatcher on
the 3rd Trick in Carrier's Centralized Crew Dispatching
Office in Pittsburgh, Pennsylvania. On night of
July
11,
1974
the other
regularly assigned Crew Dispatcher was relieved by a novice Relief Crew Dis
patcher, the senior clerk on the extra list, R. P. Rushofsky. At the start
of the 3rd shift at approximately 11:30 p. m. on
July
11,
1974
Claimant tele
phoned his superior, D. E. Hewitt, Supervisor, Centralized Crew Dispatching,
at the latter's home. The record is clear that Claimant called Supervisor
Hewitt to question him about having to work with Rushofsky but there is
material conflict concerning the precise conversation which took place.
There is no dispute that Hewitt raised question concerning the amount of work,
Rushofsky's inexperience and how to apportion the work. There is no dispute
concerning Hewitt's direct order to Claimant to complete the work assigned
to the shift. Claimant testified that that was the sum and substance of the
conversation and denied telling Hewitt he would do no more work than Rushofsky
and that Hewitt should not count on having the work done. Hewitt testified
on the basis of a written report prepared by him on
July
12,
1974
and addressed
to the Transportation Superintendent. That report and Claimant's testimony
assert inter alia the following as facts:
Award Number 21612 Page 2
Docket Number CL-21356
"1. Claimant Cook called him at home at 11:30
P.M., the starting time of Cook's assignment,
and asked who would be working with him that
night.
"2. When informed that it was R. P. Rushofsky,
an inexperienced man, Cook advised Hewitt
not to expect any work to be done.
"3. When asked why, Cook replied that he would
do no more than the inexperienced man.
"4. When instructed by Mr. Hewitt that he was to
do
8
hours of crew dispatching work during his
tour of duty and the work would be done, Cook
replied, 'Don't count on it."'
Additional evidence adduced on the record consists of statements by Rushofsky
and the regular 2nd Trick Crew Dispatcher. Under close scrutiny however these
statements are of little evidentary value since neither man heard all of the
Hewitt-Cook conversation but only isolated parts. Moreover, one of the purported "affidavits" is nei
Upon reporting to work on the morning of July 12, 1974 Supervisor
Hewitt found that some two hours of crew dispatching work had not been performed
on the 3rd Trick and had to be done by the lst Trick operator. The record
shows clearly that this is a rare occurrence. At approximately 9:30 A.M.,
July 12, 1974 Hewitt contacted Claimant Cook by telephone and advised him he
was pulled out of service effective that date with letter of charges to follow.
Thereafter, by letter dated July 16, 1974, Claimant was notified to attend
investigation into charges of insubordination and failure to complete his work
assignment. Following an investigation held July 19, 1974, Claimant was found
culpable and assessed discipline of actual suspension for 15 working days.
The Organization raises several procedural objections relative to
impartiality of the hearing officer and propriety of the review of the transr
cript by other than the hearing officer. These allegations of bias and unfairness were raised de
Award Number 21612 Page 3
Docket Number CL-21356
See Awards 17424, 19746, 19977 et al. The case turns on a determination
whether substantial record evidence supports Carrier's conclusion of Claimant's
guilt of insubordination and, if so, whether the penalty assessed is arbitrary,
unreasonable or capricious in the circumstances. In our judgement the
central issue herein is one of credibility of witnesses. If Hewitt's account
of the conversation can be believed, then we think it not unreasonable to
conclude that the uncontroverted failure to perform the work was, indeed, a
self-fulfilled prophecy by Claimant and, taken as a whole,his action would
constitute insubordination. If none of the conversation occurred as Hewitt
described it,then the mere fact of incompletion is not enough to establish
insubordination. But by long-established precedent we cannot set ourselves
up as triers of fact and particularly not to resolve patently conflicting
testimony. See Awards 9230, 9322, 10113, 10791, 16281, 21238. So long as
the testimony of Carrier's witnes's is not so clearly devoid of probity
that its acceptance would be peer se arbitrary and unreasonable,we may not
substitute our judgement in cases of this type. Nor can we conclude that
15 days'suspension for proven insubordination is so disproportionate to
the offense as to warrant reversal. In the facts of record before us we
must deny the claim.
FINDINGS: The I:iird 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, 1931+;
That this Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
paae~___
Dated at Chicago, Illinois, this 29th day of July 1977.