NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number Mw-22649
Richard R. Kasher, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF
CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The charge that Machine Operator Larry Buneta was insubordinate
to Track Supervisor Don Stogner 'at or about 2:30 P.M., September 12, 1977'
was unproven and unmistakably disproven at the investigation held on September 27, 1977, as a conseq
(2) The suspension of 'fourteen (14) days without pay' which was
LWosed upon Claimant Buneta was improper and in violation of Rule 24 (d)
LSystem File
TRRA 1977-2J.
(3) The charge of insubordination shall be stricken from the
record and Claimant Buneta shall be reimbursed for any monetary loss
suffered by him."
OPINION OF BOARD: Claimant had five and one-half years of service with
the Carrier when he was removed on September 12, 1977
for insubordination. A hearing was held on September 27, 1977 and by letter
dated September 29, 1977 Claimant was informed that the charge was proven
and a fourteen (14) day suspension was assessed. Claimant returned to work
on Monday, October 3, 1977.
The undisputed facts concerning the incident are that, on
September 12, 1977 Claimant was assigned as a truck driver to System Gang #9.
Sometime during his shift Claimant entered a nearby building to use the
rest room. Track Supervisor Donald Stogner observed Claimant entering the
building and after approximately one-half hour proceeded to the building
to check on Claimant. As Supervisor Stogner approached the building, the
Claimant appeared outside and soon thereafter Claimant began using profane
language.
The record contains conflicting testimony regarding the question
of whether Supervisor Stogner was told that Claimant was feeling ill and
whether Stogner provoked Claimant's profane outburst with indiscreet
language of his own. In any event, after the heated exchange of words,
Claimant was removed from service pending a hearing.
Award Number 22915 Page 2
Docket Number MEW-22649
As a preliminary matter we wish to point out that Claimant's
removal from service was inappropriate in light of the circumstances.
While some awards go further, it is generally accepted by this Board
that a Carrier is justified in removing an employe from service only when
it appears that the employe is a hazard to his own safety and the safety
of others; when his misconduct was gross; or, when failure to take the
employe out of service would impede the Carrier in the proper and effective
conduct of its business (See Award No. 21447, Referee Nicholas H. Zumas).
While the instant charge was not sufficiently serious to warrant
Claimant's removal from service pending a hearing, the 14-day suspension
was neither arbitrary nor unreasonable in light of Claimant's insubordinate
use of profanity. Although the supervisor's actions may have been provoking, this Board cannot condo
was profane and it was not demonstrated that it was shop language accepted
by supervision.
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
The Agreement was not violated.
A W A R D ,-
Claim denied.
NATIONAL. RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
-Z~.
Dated at Chicago, Illinois, this 22nd day of July 1980.