NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22923
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CIAIhf: Claim of the System Committee of the Brotherhood (GIr8830)
that:
1. Carrier violated the Agreement Rules, particularly Rule 21,
when by letter dated May 26, 1978 it dismissed from service Mr. Larry R. Weir,
Janesville, Wisconsin, account investigation held on may 20, 1977, and
2. Carrier shall now be required to reinstate Mr. Larry R. Weir
to service of Carrier with all rights unimpaired and with full pay for each
work day withheld from service, beginning May 27, 1978 and continuing until
the violation is corrected; to include benefits that may be due him under
the provisions of Travelers Group Policy GA-23000 and Aetna Policy GP-12000.
OPINION OF BOARD: Claimant, who had about ten years of service with the
Carrier, was employed as a telegrapher-clerk at South
Janesville, Wisconsin. Access to the yard office is by an unpaved gravel
road. On March 14, 1978, claimant advised Carrier's Division Manager that
effective March 15, 1978, he would no longer drive his automobile over this
road, alleging that it was in an unsafe condition "due to the multitude of
potholes."
On March 15, 16 and 17, 1978, claimant did not report for duty.
On March 15, 1978, the Trainmaster offered to transport claimant over the
road to the yard office, but claimant refused. As result of claimant's
actions on March 15, 16 and 17, 1978, he was served with three notices of
investigation as follows:
"Your responsibility for failure to properly protect your
assignment, 7:59 AM, Job 036, Yard Clerk, on March 15, 1978
at South Janesville from 7:59 AM to 3:59 PM."
"Your responsibility for failure to comply with instructions
issued to you by Mr. K. J. Dove, Trainmaster-South Janesville
at about 9:53 AM on March 15, 1978 while employed as a yard
clerk at South Janesville."
Award Number 22798 Page 2
Docket Number CL-22923
"Your responsibility for your failure to comply with
instructions from Trainmaster K. J. Dave that you report
to South Janesville Yard Office to protect your assignment
on March 16 and March 17, 1978 and your failure to protect
your assignment on the above dates while assigned to Job
036-Yard Clerk at South Janesville, Wisconsin."
By agreement the three charges were combined into one investigation,
which was conducted on Saturday, May 20, 1978. A copy of the transcript
of the investigation has been made a part of the record. Following the
investigation, claimant was dismissed from service on May 27, 1978.
It is well settled that employes must comply with instructions
of their superior officers and complain later if they consider that they
have been mistreated, except where a real safety hazard may be involved.
If an employe contends that a safety hazard is involved, then the burden
is on the employe to prove that such situation actually exists.
The Board has carefully reviewed the transcript of the investigation.
During the days that claimant refused to work, a number of persons operated
their automobiles over the road involved, without damage to their automobiles
or personal injuries. We are, therefore, forced to the conclusion that
there was no proper basis for claimant's refusal to perform service on the
dates involved.
Discipline was warranted. However, based on the entire record,
the Board is of the considered opinion that the time that claimant has been
out of service should constitute sufficient discipline for the offense.
We will award that claimant be restored to the service with seniority and
other rights unimpaired, but without any compensation for time lost while
out of service. The claimant should clearly understand, however, that the
purpose of this award is to give him "one last chance" to become and remain
a competent and responsible employe, and that further major infractions by
him will result in the permanent
termination of
his services.
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 Number
22798 Page 3
Docket Number
CL-22923
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 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;
&dz~
Dated at Chicago, Illinois, this 31st day of
March 1980
.