(Brotherhood of Railroad Signalmen PARTIES 1V DISPUTE:

STATEMENT OF CLA314: "Claim of the General Committee of the Brotherhood of

on behalf of Signalman C. J. Holdren assigned to Signal Crew 139 headquartered at North Kansas City, Missouri, who was dismissed from service as a result of an investigation held on February 1, 1980. Mr. Holdren should be reinstated to his former position of signalman., reimbursed for all time lost and any reference to this investigation be cleared from his personal record."

 OPINION OF BOARD: On January 21, 1980 Signal Crew 139 Foremen Shoemaker held
 a safety meeting with his crew members in their headquarters at starting time. At this meeting the Claimant alleged that the signal bridge where the crew was working was unsafe to work on when cars were moving beneath it. Foreman Shoemaker called Signal Supervisor Craig to advise him of the complaint. Signal Supervis out of the bowl yard, but that there was nothing unsafe about working on the bridge during the normal humping operations when they had their safety belts on.

 Following the meeting. Foreman Shoemaker and the rest of the crew proceeded to the signal bridge to work but the Claimant remained in the crew's headquarters. After a telephone call from the Claimant to the Terminal Superintendent complaining ab humped, the crew was brought back to the crew headquarters and again the Claimant's complaint was di
Signal Supervisor Craig again stated that he had no objection to the crew getting off the bridge when cars were being pulled out but that there was nothing unsafe about working on the bridge during the normal humping operations when they had their safety belts on. When Supervisor Craig instructed Foreman Shoemaker to take the crew to the job site, Claimant objected and he told Signal Supervisor Craig, "You can get f-----."

 Signal Supervisor Craig then told the Claimant that he was not being taken out of service but if he was not going to work he was not going to be paid. Claimant then left, heading away from the bridge site. Claimant reported to his crew at 10:30 AM for work on the signal bridge.


Claimant was cited by notice dated January 25, 1980 to attend an investigation February 1, 1980, "for the purpose of ascertaining the facts and determining your responsibility in connection with your alleged failure to comply with instructions from proper authority, and your alleged use of vulgar language at about 8:30 AM on January 21, 1980 at North Kansas City. Missouri."

 The investigation was held as schedules and Claimant was found guilty of violating Safety Rules 700, 701, 702 and 702 (B) and notified of such by letter dated February 15, 1980.

 Claimant appealed his claim and contended (1) that the Carrier's notice of investigation did not comply with Rule 54 (C) because it did not "outline the specific offense or mention nap Rule violations"; (2) the Carrier wrongfully denied a request of the Local Chairman to sequester the witnesses; (3) that the discipline was without dust and sufficient cause. Carrier's appeals officers declined the appeals.

 Carrier maintains, that the investigation notice seat to the Claimant met the requirements of Rule 54~C) in that the accused must be told only of "specific offense for which the hearing is to be held." This requirement was satisfied in that there was a reasonably clear indicator of the incident or conduct to be investigated. The citing of specific Signal Department rules is not mandatory and need not be as precise as a criminal complaint (Third Division Awards 12898, 16154, 16115, 15027 and 14573)·

 Ghrier contends that even if the notice was not fully satisfactory, he still had several days before the investigation to request clarification and he did not do so.

 Further the Carrier asserts that the inclusion of charges of specific rules violations is not necessary (Third Division Award 22119, 22663, 20234, 19998, 16816, 16637 and 16121).

 Carrier maintains that there is no rule or agreement which requires the sequestering of witnesses (Fourth Division Award 2058, Third Division Awards 14391, 16007 and 19487).

 Further, the Carrier maintains that the Claimant reused to perform service when instructed to do so by proper authority. Signal Supervisor Craig testified that he had instructed the Claimant to go to work.

 Further the Claimant admitted to his use of profane and vulgar language toward his supervisor. Signal Supervisor Unze and Crew Foreman Shoemaker corroborated Supervisor Craig's testimony concerning his instructions to the crew to go to work and the Claimant's use of vulgar and profane language.
                      Award Number 23997 age 3

                      Docket :Dumber SG-24045


(artier maintains that the discipline assessed the Claimant,, even if it were only for the use of profane and vulgar languages was neither arbitrary nor capricious (Award Ho. 3 Public Law Board No. 1850; Third Division Awards 16948, 17515)· The Carrier noted that the discipline was fully warranted is light of Claimant's past unsatisfactory personal record. This record included a 30-day suspension for refusal to wear a hard hats a five-day suspension for failure to report for duty at the designated time affil place and a 30-day suspension for failure to operate a company vehicle in a safe and efficient manner.

 Organization maintains that (1) the handling of this dispute on the property was procedurally defective and (2) Carrier's punishment was unwarranted unjust and improper.

 In regards to procedural defects, Organization asserts that the notice of investigation did not state which rules were allegedly violated. This constitutes a violation of in part:

        "At least five calendar days advance written notice of the investigation outlining specific offense for which the hearing is to be held..."


Claimant also contends that Claimant's representative requested that the witnesses be sequestered in order to secure a fair and impartial investigation. The representative was not allowed to continue to question Carrier witness.

 The choice of returning to work under the conditions set by the supervisor or being removed fry payroll was given to Claimant. Therefore the Claimant cannot be charged with being absent from duty when he was given a choice. The Claimant notes that he was not on the payroll during the period from 8:00 AM to 10:30 AM and therefore was not being paid when the alleged rule violations occurred. Therefore the charge of dot following proper instructions is invalid.

 Further, the Claimant maintains that the alleged vulgar word is nothing more thaw "shop talk" that is used often, without fear of being disciplined.

 Upon a careful consideration of the record in this matters the Board concludes that Claimant was given a fair and impartial hearing. The Board further concludes that there is substantial evidence on the record to support the charge. The Board notes that the principle of "work now and grieve later" is applicable in these circumstances. The Board also notes that the language used by Claimant does not constitute "shop talk" is these circumstances. Given Claimant's past discipline record the Board concludes that the claim must be denied.
                      Award Number 23997 Page 4

                      Docket Number SG-24045


        F103NGS: The Third Division of the Adjustment Board, upon the whole record and ell 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; and

        That the Agreement was not violated.


                        A H A R D


        Claim denied.


                            NATIONAL RAILROAD AWUSTMEftT BOARD

                            By Order of Third Division


        ATTEST: Acting Executive Secretary National Railroad Adjustment Board.


By /~G.·r·~tJL~C~
 _/~semsxie Brasch - Admiaistrative Assistant

 Dated at Chicago, Illinois, this 17th day of September 19$2.

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