NATIONAL. RAILROAD ADJl)3')MBPT BOARD
THIRD DIVISION
Rodney E. Dennis, Referee
PARTIES TO DISPUTE
Award Number
23564
Docket Number
MW-23819
(Brotherhood of Maintenance of Way Employee
(The Denver and Rio Grande Western Railroad Company
STATEMENT CF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The twenty-five
(25)
day suspension Imposed upon Trackman
Juan A. Garcia for alleged insubordination, intemperance and willful neglect
of duty was arbitrary, capricious and on the basis of unproven charges
(system File
»-47-79/MW-30-79)·
(2) Trackman Juan A. Garcia shall be compensated for ail wage loss
suffered earl have the charges removed from
hts
record."
OPINION OF
BOARD: Claimant Juan A. Carols is an extra gang
laborer.
On
August
29, 1979,
he van instructed by his Foreman to set
spikes and to give up a hack hamaer to a younger man. It is alleged that
rather than amply with these
instructions,
he left the work eras to discuss
the matter with the General Chsirmn.
The General Chairman vas not available until Monday, September
3,,
1979, so
Claimant obtained permission to be oft from work for two
days.
When
Claimftat returned to work, on September 11,
1979,
he was suspended from service.
The hearing on the matter was eventually held on Monday, September 17y
1979.
Claimant was found guilty of
insubordination, intemperance,
and willful
neglect of duty as the result of the incident that took place at about
9:00
a.m.
on Weaassday, August
29, 1979.
He vas assessed a
25-day
suspension, which was
to run from September 11,
1979,
through
October
15, 1979.
The Organisation appealed the suspension; the appeal was denied at
each step and the dispute was placed before the Board for resolution. A copy
of the transcript of the hearing has been
made
a part of the record of this
case.
A review of that transcript reveals that the Foreman, as
Well
as
Claimant, were both culpable in this situation. While Claimant did question
the Forman's order, he did not leave the work site until the foreman became
angry and yelled at him, This is one of many cases this Bawd hoe handled
wherein track gang foremen and laborers have been involved in exchanges.
Voieee; are raised and profanity is used. A foreman who nets in this meaner
Award Number
235+
Page 2
Docket Number
MiI-23819
cannot expect that his orders rill not provoke a like response. When an
employs L disciplined as a result of n situation is which a foreman has been
provocative., the legitimacy of that discipline x111 be questioned.
In the instant use, it is this Board's opinion that Carrier has not
administered discipline to Claimant is a proper manner. This Board can find no
basis is the record. for not allowing Claimant to return to work on September 11,
nor is there support for the fact that no written reasons rare given Claimant
to explain his suspension.
We are of the opinion that (terrier was arbitrary is the suspension
prior to the hearing end therefore x111 reduce Claimant's suspension, deleting
the period from September 11,
1979,
to sad isoluddng September 25,
1979.
Claimant's suspension shall thus run from September 26,
1979
to October 15,
1979.
Claimant shall be reimbursed for all rages lost fray September 11,
1979,
to and including September 25,
1979·
g>
NDING3;
The Third Division of the Adjustment Board, upon the whole record
sad 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 sad 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; sad
That the Agreement was violated.
/~,w
C
rhUA W A R D
I\'
t~ _ '~
C~'c ~t~ j' l
The discipline shall be reduced in accordance 4ith o~ `i
NATIONAL RAILROAD ADJU3TMU T h.OARD
By Order of Third Division
ATTEST: Acting Executive Secretary
Rational Railroad Adjustment Hoard
Ay
R emarie Bras - Administrative Assistant
Dai;ed at Chicago, Illinois, this 10th day of March
1982·