NATIONAL RAILROAD ADJUST`SENT BOARD
THIRD DIVISION Docket lumber :T.a-22830
Paul C, Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis-San Francisco Railway Company
STATE`ENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The dismissal of Trackman B. J. Earnest was without
just and sufficient cause, disproportionate to the offense with which
charged and in violation of the Agreement (System File B-1444).
(2) Trackman B. J. Earnest shall now be allowed t'.^.e
benefits prescribed in Agreement Rule 91(b)(6)."
OPINION OF
BOARD:
Claimant was assigned as trac:=,acr. Carrier's
Gang No. 1:3, with about four years o= service,
?:e was dismissed by the Foremsn On April 7, _978, for -insubordi.^^.at1Cn
711
refusing to perform work as instructed by the Foreman. At the
request of the Organization, a formal
=Jest
nation was conducted on
April 25, 1978. Claimant was advised on May 2, 1978, that he was
permanently removed from the service. Claim was then presented by
the Organization and appealed ir. the usual manner on the property,
reauesti_=ig that clair,2._t be restored to service with all rights
unimpaired and pay for time lost from April 7, 1978,
A copy of the tramscript of the investigation conducted on
April 25, 1978, has been nade a part of the record, From the record
before the Board we find that none of claimant's substantive pro
cedural rights was violated. The Organization comslains tha=·the
___crod::ction of claiyht s past -record the li-Tveszig-stion
^rec-:-ded a Lair and impartial %eari^g_A1thCUgh 2 few a'·.:2rds fla';E
he----4 it to be improper _o --clude an eno:_oc_ s past record d 'r. the
transcript o= the ivestioaticn, other awards have held to the
con=rary, ·ahare _h>_ past recc=d -;as -ot used to deter...ine
but for the purpose of determining the discipl_ime to be imposed for
a "rover. offense. This r_ie=ee agrees- :.7ith the lat=er group of awards.
See recent =wards Nos. 22521 and 22!:60,
Award Number 22746 Page 2
Docket Number NW-22830
There was substantial evidence presented at the investigation
to support the charge of insubordination against the claimant, and the
Carrier's actions in dismissing him from service. The Foreman was
in charge of the gang and was responsible for the work performed by
the gang. The claimant was obligated to comply with the instructions
of the Foreman and then handle through the grievance procedure if he
thought that he was being mistreated.
There is no proper basis for the Board to interfere with
the discipline imposed by the Carrier.
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
xecutive Secretary
Dated at Chicago, Illinois, this 29th day of February 1980.