(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Enployes PARTIES TO DISPUTE: (Chicago and North Western Transportation Company

"1. Carrier violated the current I.greement Rules, particularly Rule 21 (Discipline), when under date of January 28, 1976, it dismissed from service Mr. M. w. Gillman, time sorter clerk at Ravenswood, account of investigation held on January 22, 1976; and

 2. Carrier shall required to reinstate Mr. DI. W. Gillman to the service of the Carrier, and compensate him for all time lost from January 28, 1976 forward, until such time as the violation is corrected."

 OPINION OF BOARD: The Claimant had been an employee for two years and
 four months, but at the time of the investigation
 was on indefinite furlough due to force reduction.

 The Claimant, Mr. M. W. Gillman, was discharged from the service of the Carrier for allegedly refusing to obey a direct order issued to him by the Personnel Manager.

 The first witness called at the investigation was J. W. Popescue, Manager, Office Services. He testified as follows:



                    Docket Number CL-22031


The second witness was D. C. Zickefoose, Personnel Manager, and he testified as follows:

    "Mr. Hayes: Would you please state for the record what

    transpired between yourself and Mr. Gillman

    on the morning of January 14, 1976

    Mr. Zickefoose: At approximately 8:10 A.M. on January 14, 1967,

    I observed Mr. Gillman distributing copies of a

    leaflet entitled 'The Semaphore' to incoming

    employees in the South vestibule in the Ravens

    wood Building. I approached :,hike and requested

    that inasmuch as he had previously been warned

    and counseled about the distribution of 'The

    Semaphore' that he go out on the public side

    walk off of the Company property for the distri

    butior of this document. Mike made a response

    something to the effect that it was cold out.

    I then responded that we do not need any addi

    tional problems, if you want to distribute this,

    just go out on the public sidewalk. It was

    apparent to me that Mike felt he had a right to

    distribute this leaflet on the property, so I

    then stated that I am giving you a direct order

    to leave the premises if it is your intent to

    pass out "The Semaphore'. Do not pass it out on

    company property and if you fail to comply it

    will result in disciplinary action. At that

    point Mike made a comment that I shouldn't get

    mad. I did respond that I wasn't mad. I

    assume the reason Mike felt I was mad was be

    cause I did raise my voice - I did so with the

    intent to insure that he did not misunderstand

    exactly what I was saying as there were employees

    chatting as they were filing in the door. I was

    also stern, as I did not want him to misinterpret

    the importance of the direct order I was giving

    him. Mike responded something to the effect that

    an NLRB ruling gave him the right to pass out a

    leaflet such as 'The Semaphore' on the property

    providing it was passed out prior to his hours of

    assignment and not in an immediate work area.

                    A-,.card Number 21890 Page 3

                    Docket Number CL-22031


                  I then called Mr. Frank Parker, Kane Security Guard, from his post at the First Floor stairwell, and reiterated my order to Mr. Gillman. Mike and I stood there for several minutes during which period of time people were filing into the building. He asked how he could appeal my decision. or his right or whatever, I suggested that he see his union representative. Subsequent to that few minutes of discussion, Mr. Gillman in the vestibule of the South Wing of company property, began passing 'The Semaphore' out to employees filing in the door. I identified at least one individual, to whom ILr. Gill man gave a copy of 'The Semaphore' subsequent to m;· direct order. That individual was ?4r. J. W. Lester, of the Auditor Freight Divisions.


Mr. Zickefoose also testified in regard to prior incidents:
    "Mr. -layes: Mr. Zickefoose, to your knowledge did Mr. Gill man

    receive any previous warnings about distributing

    literature on company property?

    Mr. Zickefoose: In June or July of 1975 upon receipt by me of the

    initial publication of 'The Semaphore'. I called

    I-Like to my office and explained to him that though

    it was not my intent to prevent him from exercising

    his rights to freedom of speech, that the distri

    bution of this type of leaflet would not be con

    sidered appropriate on company property. At a

    later date, on entering the Ravenswood Building,

    Mike was distributing the leaflets on the steps

    leading to the South Door of the Ravenswood

    Building, I requested of him to move on out to the

    public sidewalk for the distribution of 'The

    Semaphore' and he complied."


On cross-examination, the following testimony was elicited from Personnel Manager Zickefoose:
                    Award Number 21890 Page 4

                    Docket Number CL-22031


      "Mr. Stirton: Mr. Zickefoose, when reviewing the charge as

      documented in the letter of January 14, 1976,

      isn't it correct that this entire incident

      took place before the assigned working hours

      of ifr. Gillman and other first-shift employees?


      Mr. Zickefoose: That is correct.


      Mr. Stirton: Isn't it also correct that the actual geogra

      phic location that he was handing these pam

      phlets out might be described as the doorways

      comprising the South entrance of the building

      which could be described as an area which is

      prior to the general admission or working areas

      of the building.


                  Mr. Zickefoose: I would describe the area as private property owned by the Chicago and North Western Transportation Company.


      Mr. Stirton: Yes, we do not dispute that, however so that

      the area can be identified if I made tae state

      ment that the area that he passed these docu

      ments is not a location that is considered a

      working area where duties are performed, this

      would be correct or wouldn't it?


                  Mr. Zickefoose: It would be correct to define this area as not an immediate work area."


The Claimant, M. W. Gillman, was the third witness. He testified as follows:

      "Mr. Hayes: Mr. Gillman, on January 14, 1976, at approxi

      mately 8:20 a.m., were you standing in the

      South entrance vestibule distributing a pub

      lication called 'The Semaphore' to fellow

      employees?

      Mr. Gillman: At approximately 8:20 a.m. on the morning of

      January 14, 1976, I was standing within the

      vestibule which is a non-:cork area, which at

                  Award P7w:.ber 21890 Page j

                  Docket Number CL-22031


              "that time was before the working hours of myself and of the other employees entering the building. I was at that time distributing copies of 'The Semaphore' which is the voice of the rank and file action cormtittee which is a caucus within our union fighting for a strong and democratic union.


Mr. Fayes: At that time, were you approached by Mr. D.
 C. Zickefoose and requested that you leave
 the premises if you wished to distribute this
 document?
 Mr. Gillman: At approximately 8:10 on that morning, Mr.
 Zickefoose entered the building and requested
 a copy of 'The Semaphore'. I informed fir.
 Zickefoose that this paper was meant for the
 clerks in this building and that if he wished
 one he could obtain it through whatever manner
 he wished but I would not give him one. Ap
 proximately five minutes later, tLr. Zickefoose
 returned to the vestibule in an azitated manner
 and requested that I no longer hand out the
 leaflet. I informed Mr. Zickefoose that under
 a Supreme Court decision, which is cited as
 National Labor Relations Board v. Magnavox
 Compary of Tennessee, referred to at 94 S. Ct.
 1099 (1974), that employees have the right to
 distribute union-related literature on non
 working hours in non-working area, and that I
 do not feel that his order was just and right
 ,ul. -~:- ~c.
 Mr. Stirton: 2·;r. Gillman, when you passed out these circu
 lars or leaflets, known as 'The Semaphore' on
 the morning of January 14, 1976, this distri
 bution was limited to a time period prior to
 your tour of duty and the tour of duty of
 those individuals that you passed these papers
 out to, isn't that correct?
                Award Number 21890 Page 6

                Docket Number CL-22031


"2·r. Gillman: To the best of my knowledge, that is correct.
 Mr. Stirton: And also, when you did pass out these papers,
 you passed them out at the doorway or entrance
 to the building because of inclement weather
 and these documents were not passed out in any
 of the offices or actual work locations, isn't
 that correct?
 ,dr. Gil lman: That is correct.
 :dr. Stirton: Now reference is made in the letter of charges
 to insubordination and would it be correct for
 me to assume from the prior testimony that you
 had no wish to be insubordinate, but that you
 felt that because of your knowledge of certain
 court decisions and NLRB decisions, that you
 were within your right to distribute this in
 formation?
 ?·_r. Gillman: That is correct.
 Mr. Hayes: I have just a couple of questions of :,fr. Gillman.
 Mr. Gillman, were you given a direct order by
 Mr. Zickefoose as previous testimony has in
 dicated on the morning of January 14, 1976?
 Mr. Gillman: Mr. Zickefoose did give me a direct order -
 the question arises as to whether it was justi
 fied and lawful for him to give that order?
 Mr. Hayes: Did you obey this order or did you continue to
 subsequently distribute the publication,
 'The Semaphore"'
 Mr. Gillman: bL. Zickefoose and I discussed this for several
 minutes, at which time Miss ii. Muravski, Member
 of the Protective Committee, entered the
 building and requested a copy from me at which
 time I gave it to her, at which time Mr.
 Zick°efoose left the area, saying that I had made
 my decision and that it did not matter anymore,
 at :which point I got the feeling that, if that
 was his position, I would continue to utiliZ_
 my lawful. rights and continue to :and out this
 rublication.
                  Award Number 21890 Page 7

                  Docket ?lumber CL-22031


    "M_r. Hayes: Did you continue to hand out the publication?


    :nr. Gillman: Yes, I did."


The evidence further indicated that the Claimant was the Chairperson of the Unemployed Committee of Brotherhood Lodge 803, and that "The Semaphore" was published and distributed by his committee.

 The Carrier then recalled Personnel Manager Zickefoose, who denied that he threatened the Claimant with expulsion from the property by use of the local police. He then further testified:

                "Mr. Hayes: Did you threaten Mr. Gillman with expulsion from company property by anyone?


                Mr. Zickefoose: I gave him a direct order to leave the property if it was his intent to pass out Semaphore."'


        These were the only witnesses presented at the hearing.


The Carrier argues that the question is quite simple, i.e.,did the Claimant refuse to comply with a direct order from an officer of the Company?

 The Union takes the position, first of all, that it was improper for the Personnel Manager to give the order involved herein, and that he could not have reasonably expected said order to be obeyed. The Union urges that the distribution of the pamphlet is protected by the First Amendment and comes within the guidelines established by the Supreme Court of the United States in that the pamphlet was distributed prior to assigned working hours in an area not defined as an immediate work area.

 The theory of the Carrier would seem to be that the Claimant had a duty to obey the order and then to file a grievance urging that the Personnel Manager did not have the authority to issue the order. Some arbitrators have offered support for this theory and perhaps none have more succinctly made the point than. did Umpire Far:,, Shulman, In the Matter of the Arbitration of Ford Motor Company, 3 IA 779, 780-781 (1944):
                    Award Number 218^90 Page 8

                    Docket lumber CL-22031


          "Some men apparently think that, ;when a violation of contract seems clear, the employee may refuse to obey and taus resort to self-help rather than the grievance procedure. That is an erroneous point of view. In the first place, what appears to one party to be a clear violation may not seem so at all to the other party. Neither party can be the final judge as to whether the contract has bee- violated. The determination of that issue rests on cc! -ective negotiation through the grievance procedure. But, in the second place, and more important, the grievance procedure is prescribed in the contract precisely because the parties anticipated that there would be claims of violations w would require adjustment. That procedure is prescribed for all grievances, not merely for doubtful ones. Nothing in the contract even suggests the idea that only doubtful. violations need be processed through the grievance procedure and that clear violations can be resisted through individual self-help. The only difference between a 'clear' violation and a 'doubtf is that the former makes a clear grievance and the latter a doubtful one. But both must be handled i regular prescribed manner.


          "When a controversy arises, production cannot wait for exhaustion of the grievance procedure. While that procedure is being pursued, production must go on. someone must have the authority to direct the manner in which it is to go on until the controversy is settled. That authority is vested in supervision. It must be vested there because the responsibility for production is also vested there; and responsibility must be accompanied by authority. It is fairly vested there the grievance procedure is capable of adequately recompensing employees for abuse of authority by su


There are others who believe that exceptions do exist. It is suggested that before an employee has a duty to follow an order, it must be an order the employer was entitled to give and one that the employer could reasonabl,; expect to have obeyed.

 Dr. Elkouri, in "How Arbitration Works," at Pages 154 through 156, says:
                      A:rard N:mber 21890 Page 9

                    Docket Number CL-22031


          "Arbitrators often deny or limit requested relief, notwithstanding the merits of the original co the grievant has resorted to self-help rather than to the grievance procedure. Mary arbitrators have taken the position that employees must not take matters into their own hands but must obey orders and carry out their assignments, even if believed to violate the agreement, then turn to the grievance procedure for relief.


          The fact that employees acted by 'ad-rice of counsel' has been held not to provide a defense or justification for self-help. ilor is a refusal to obey management's orders i==ized by the fact that the employee was 'caught in the middle' between company and union., though t2tis fact might be reason -."or reducing the penalty. In regard to reducing the penalty, the offense of disobeying orders has sometimes been considered to have been mitigated somewhat where the initial refusal to obey was followed by obedience.


          An important exception to the general rule against resorting to self-help exists where obedience would involve an unusual health hazard or similar sacrifice.


          Some arbitrators have recognized other possible exceptions to the duty to obey orders, as where the order commands the performance of an immoral or criminal act; or where the order violates the rights or domain of the union itself by interfering with the union's contract to investigate and process grievances; or w=ere an order interferes with the employee's proper use of the grievance procedure; or where the order commands a skilled craftsman to perform work wholly unrelated to his craft; or where the order 'is quite clearly and indisputably beyond the authority of the company. * * *"


br. 2ickefcose vas the Personnel Manager and had been an employee of the Company ten years. He should have known the rights of the employees in regard to distributing material on the property. He may have made a serious error in judgment in directing the C imar.t not to distribute the literature prior to assi=ed working hours is an area not identified as a.: immediate wors_ area.
                    Award Ihrber 21890 Page 10

                    Doc'-set Number CL-22031


The Company elected to avoid a confrontation on the question of the right of the Claimant to distribute the literature and chose instead to discipline the Claimant for willful refusal to obey the direct order of the Personnel Manager.

 The Grievant did not elect to pursue a grievance in regard to the order of the Personnel Manager self-help by violating the order.

 The Grievant urges this Board to decide that the actions of the Carrier constituted a subterfuge and, therefore, the Carrier was perrmitted to do indirectly what it was prohibited from doing directly.

 The evidence is clear and convincing in support of the charge that the Claimant refused to comply with a direct order from an officer of the Company.

 The Claimant has failed to prove that the order falls within a recognized exception to the general rule against resorting to self-help.

 We find that in the instant case the Claimant should have obeyed tie order of the Personnel Manager and then pursued his grievance remedies if he believed the order to be in error.

 Although in this case we adopt the obey and grieve theory, we hasten to add that in a proper case where an established exception was proven, ,re would not hesitate to grant relief.

 However, in this case, the Claimant was simply distributing literature and was ordered to cease a^.d desist. None of the recognized exceptions for invoking self-help were proven herein and we hold that the carrier acted properly in dismissing the Claimant for reusing to comply with a direct order of a company officer.

          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;

                    Award N=ber 21890 --Page 11

                  Docket i5'unber CL-220;1


That the Carrier and the &nployes involved in this dispute are respectively Carrier and ~nployes within the meaning of the Railway Labor Act, as approved Tune 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.


                        NATIONAL RAILROAD ADJUSTi·UMT BCARD

                        By Order of Third Division


ATTEST:
        E~:ecutive Secretary


Dated at Chicago, Illinois, this 15th day of February 1978.