NATIONAL RAILROAD ADJLSMW BOARD

Award Number 22631

THIRD DIVISION Docket Number MS-22393

James F. Scearce, Referee

(W32liam Rogers
PARTIES TO DISPUTE:
(The Baltimore and Ohio
( Railroad Company

STATE. T O' CLAM: "This is to serve notice as required by the rules
of the National Railroad Adjustment Board, of my
intention to file an ex parts submission on the 14th day of Decekber,
1977, covering an unadjusted dispute between me and the B & 0 Railroad,
involving the question:

1) of being illegally dismissed from my job of 'B' operator of spike puller.

'I was told to operate an unsafe spike puller and I refused to do it.'

'I told the supervisor that I would operate the puller that I had been operating and he told me I was fired.'"

OPINION OF BOARD: As the result of a hearing which was held on November 17, 1975 in connection with the charge:

"Yon are charged with your responsibility in connection with refusal to operate roadway track machine at Anderson, Ohio at about 8:25 A.K., October 27, 1975."

Claimant Rogers was dismissed from Carrier's service by letter dated November 25, 1975.

No appeal was taken by Mr. Rogers from this dismissal. No claim of any type was initiated by Mr. Rogers with any Carrier official. Nothing was heard from Mr. Rogers until Nova 16, 1977, when a
"Notice of Intent" was filed with the Executive Secretary of the Third Division of this Board.

In petitioner's ex a~rte submission to this Board we find the following:

Award Number 22631 Page 2

Docket Humber AS -22393

RE, petitioner pray judgment against respondent in their favor;

"(s) requiring that respondent establish nondiscriminatory hiring, psymeat, opportunity, promotional, lay-off and recall, employment roles, and benefit plans and programs; and

°(b) enjoining the continuance by respondent of the illegal acts and practices alleged herein."

The jurisdiction of this Hoard is derived from Section 3, First of the Railway Labor Act, as amended, which provides in sub-section (i) thereof that:

"The disputes between an employe or group of

employes and a Carrier or Carriers growing out

of grievances or out of the interpretation am

application of agreements concerning rates of

pay, rnles,or working conditions, including

oases pending and unadjusted on the date of

approval of this Act, shall be handled in the

usual manner up to andaneludina the chief

at officer of the Carrier des ted

-hanlSuch dis es; but, failing to reach

an a ns ea is manner, the disputes may

be referred by petition of the parties or by

either party to the appropriate division of the

Adjustment Board with a full statement of the

facts and all supporting data bearing upon the

disputes." (Oaderscoring added)

In this instance, petitioner neither initiated his appeal in a timely fashion nor did he progress his dispute "* * * in the usual manner up to and including the chief operating officer of the Carrier designated to handle such disputes; * * *". Therefore, this claim is barred from consideration by this Hoard.

Even if we were able to somehow overcome this fatal procedural situation, re could not, under sxq circumstances, entertain a request such as is made against the Carrier in this case. As indicated above, this Hoard resolves disputes growing out of the interpretation or application of negotiated agreemen conditions. Allegations relative to alleged discriminatory plans and programs are not proper matters for review and/or consideration by this Hoard.

Award Number 22631 Page 3

Docket Number MS-?2393

While this Division would be completely Justified in dismissing this case for either or both of the jurisdictional reasons ontliaed,we have, nonetheless, looked beyond these fatal defects and still find ourselves faced with the dim'ssible situation in which Claim=^+ Rogers admittedly refused to comply with the instructions of his supervisor, and has offered this Hoard no valid justification for such refusal other than his own statement that:

"s *'s I understand that I refused only because he cursed me and pointed a finger at me, which he is a man and I'm a man too, and he had no reason to point his finger in my face."

There is no substantiation in this record to support the allegation that the supervisor "cursed" claimant. These is no substantiation in this record to support the contention that the equipment in question was unsafe. There is, in this record, evidence to show that Claimant Rogers bad previously been disciplined for failure to comply with the instructions of his foreman.

We have no alternative, based on the record in this case, other than to deny the claim as presented to the Hoard.

FIRDIM: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing there
on, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employee involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June u, 1934;

That this Division of the Adjustment Hoard 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: Executive Secretary

Dated at Chicago, Illinois, this 9th daffy of November 1979.