NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22681
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE;
(St. Louis-San Francisco Railway Company
$TATQMFNT
OF CLAIM: Claim of the System Committee of the Brotherhood
(GIr8636) that:
1. The Carrier acted in an arbitrary, capricious and
unjust manner and violated the agreement between the parties when on
February 28, 1978 it dismissed clerical employee, Robyn D. Bartosch,
from the service of the Carrier.
2. In view of the foregoing arbitrary, capricious and unjust
action of the Carrier, it shall now be required to:
(a) Restore clerk Bartosch to the service of the Carrier with
all seniority, vacation and other rights unimpaired.
(b) Pay clerk Bartosch for all time lost commencing with 3:20 a.m.
on February 23, 1978, and continuing until claimant is restored
to service, less any amount earned in other employment.
(c) Pay clerk Bartosch any amount he incurred for medical or
surgical expenses for himself or dependents to the extent
that such payments could have been paid by Travelers Insurance
Company under Group Policy GA-23000 and in the event of the
death of claimant, pay his estate the amount of life insurance
provided for under said policy. In addition, reimburse him
for premium payments he may have made in the purchase of
suitable health, welfare and life insurance.
(d) Pay clerk Bartosch interest at the rate of 10% compounded
annually on the anniversary of this claim for amounts due
under Item (b) above.
Award Number 22525 Page 2
Docket Number CL-22681
OPINION OF BOARD: Claimant was regularly assigned to Train Clerk
Position No. 74 in the yard office of Carrier's
Lindenwood Yard at St. Louis, Mo., with assigned hours 11:00 P.M.
to 7:00 A.M., Thursday through Monday.
On the night of February 23, 1978, claimant had been used
on at least two occasions to transport train crews within the
Terminal. At about 3:20 A.M., February 23, he was instructed by
the Superintendent to transport a train crew from Lindenwood to
St. Clair, a distance of about fifty miles. Claimant did not comply
with the instructions. He was charged with refusing to comply with
instructions given him by the Superintendent, and investigation
scheduled for 2:00 P.M., February 27, 1978. The investigation was
conducted as scheduled. The Superintendent testified in the investigation that the reason given by c
instructions was that claimant did not have a chauffeur's license,
and the weather conditions that night. The crew was then transported
by a woman clerk, who encountered no difficulties.
There was also introduced into the investigation a statement.
signed by Raymond F. Brockmeier, who was a brakeman on the crew that
was to be transported from Lindenwood to St. Clair, and who was
present at the investigation. The statement reads:
"St. Louis, February 23, 1978
"Statement of Fact:
"At approximately 3:20 a.m., February 23, 1978,
Superintendent J. R:. Vaden sad myself were in the Trainmaster's office at Lindenwood Yard Office. C
Bartosch walked out of the east door of the yard office
and Mr. Vaden went out this same door to talk to him.
He and Mr. Vaden came back into the yard office and a
discussion took place between Mr. Vaden and Mr. Bartosch
of which I overheard the entire conversation.
"Mr. Vaden instructed Robyn Bartosch to haul a
deadhead crew to St. Clair (I was a member of this deadhead crew) to get Train 30 whose crew had hog
main track. At this time, Mr. Bartosch stated he would
not haul the crew to St. Clair because he did not have
a chaufeur's (sic) license.
Award Number 22525 Page 3
Docket Number CL-22681
"Mr. Vaden then asked Mr. Bartosch if he was refusing
to comply with his instructions. At this point Mr. Bartosch
asked Mr. Vaden for a written message of these instructions.
Mr. Vaden wrote a message of these instructions to Mr.
Bartosch instructing him to haul this crew to St. Clair.
"Mr. Bartosch then stated he also wanted on this
message a statement relieving him of all liability in case
of any accident or injury to any crew member. Mr. Vaden
then told Mr. Bartosch he was again instructing him to get
in the truck and haul this deadhead crew to St. Clair.
He advised him he had two choices: Comply with his instructions or refuse to comply with these instr
Bartosch then replied, 'Under these circumstances, I refuse.'
"At this point, Mr. Vaden told Mr. Bartosch he was to
be held out of service, pending investigation.
"Is/
Raymond F. Brockmeier
(Signature & Occupation)
"/s/ J. Salsman 9:40 a.m. 2-23-78
(Witness) (Time & Date) "
On February 28, 1978, claimant was notified of his dismissal
from service as result of the investigation conducted on February 27.
In the subsequent handling of the dispute on the property,
the Carrier's Assistant General Manager advised the District General
Chairman that it was not the policy of the Carrier that chauffeurs'
licenses be required of employes transporting crews in Company
vehicles. In its submission to the Board the Carrier states that
clerical employes have been used to transport crews on the Carrier's
system for many years without chauffeurs' licenses, and without
protest from the organization.
Et is well settled that employes must comply with instructions of superior officers and then com
they have been mistreated, except where a real safety hazard may be
involved. If an employe contends that a safety hazard is involved,
there must be proof of such condition. No such proof is present
here. The fact remains that a woman clerk transported the crew and
encountered no difficulty.
Award Number 22525 Page 4
Docket Number CL-22681
Based upon the entire record, it is the conclusion of the
Board that claimant was subject to discipline for his actions.
The record shows that on April 1, 1978, Carrier offered to restore
claimant to service on a leniency basis, which he declined to
accept. On June 2, 1978, the Assistant General Manager wrote the
District General Chairman, confirming conference on May 30, 1978,
in which he stated:
"We were unable to reach an understanding
regarding this discipline case. I will repeat
the offer I made to you in conference, i.e.,
to reinstate Mr. Bartosch with vacation and
seniority rights unimpaired with the understanding that you may handle further the matter
of pay for time lost."
Such offer was subsequently reiterated on a number of
occasions, and declined by the claimant.
It is the Board's view that claimant acted ill-advisedly in
declining the Carrier's offer of May 30, 1978, as set forth in letter
of June 2, 1978. The offer, if accepted, would have refuted any
implication of guilt arising from a leniency reinstatement. The
claimant had an obligation to mitigate damages. Any loss suffered
by claimant subsequent to the May 30 offer, confirmed on June 2, 1978,
was of his own volition.
We will reduce the discipline imposed from dismissal to
disciplinary suspension from date claimant was withheld from service,
February 23, 1978, to and including June 2, 1978, and award that
claimant be restored to service with seniority and vacation rights
unimpaired. In all other respects the claim is denied.
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 22525 Page 5
Docket Number CL-22681
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the discipline imposed was excessive.
A W A R D
Claim sustained to the extent indicated in Opinion and
Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of
Third
Division
ATTEST:
~~
Executive Secretary
Dated at Chicago, Illinois, this 28th day of September
1979.