This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant has been employed by Carrier for approximately six years. At the time this dispute arose, Claimant was working as a Mobile Machine Operator at Fort Dodge, Iowa, under the supervision of Track Foreman J. Weepie and Assistant Roadmaster J. Seibert. Claimant's assigned tour of duty commenced 0700 to 1530 hours, with a 30 minute lunch period.
On June 22, 1994, Claimant, who traveled to work with fellow employees, arrived at the designated tie up area at 6:45 A.M. On that morning, shortly before 7:00 A.M., Assistant Roadmaster Seibert assembled the gang for a safety meeting. Prior to the onset of the meeting, Claimant became ill and had to use the restroom. Fellow gang member T. Kaufman preceded Claimant to the restroom, however, when Claimant informed him that he was sick, Kaufman avowed him to use the restroom facilities first. At approximately 7:10 A.M., Claimant returned to the location where the gang was assembled.
Assistant Roadmaster Seibert, who observed Claimant's tardy arrival, but was uninformed about the reason, instructed Foreman Weepie to "ten him to be up here with the rest of the guys at 7 o'clock." However, Foreman Weepie forgot to speak to Claimant on June 22, 1994 as he had been instructed.
The next morning, June 23, Claimant again arrived at the work location at approximately 6:45 A.M. Shortly before the 7:00 A.M. safety meeting, it began to sprinkle. Claimant returned to his vehicle to retrieve a rain coat and rubber boots. By the time he returned, Claimant was tardy for the second consecutive day. Assistant Roadmaster Seibert, apparently assuming that Claimant had defied his earner admonition (which Foreman Weepie had forgotten to deliver) confronted Mr. Miller with: "You need to get your ass up here with the rest of the guys at 7 o'clock."
substance: "I'll bet you couldn't pass a piss test, and wouldn't that make your life miserable."
As a result of that outburst, Claimant was served a Notice of Investigation. The Hearing was held on July 15, and on July 25, 1994, Claimant was informed that the Carrier had found him guilty of "quarrelsome and discourteous conduct and failure to report for duty at the designated time and place." As a consequence, Claimant was assessed a 30 working day suspension.
At the outset, the Organization asserted that Claimant was not properly apprised of the Agreement Rule(s) with which he was being charged. For its part. Carrier maintained that the Organization did not comply with the established appeal process. A careful review of the record evidence indicates that each of these assertions is without merit, and in no way could be construed as fatal procedural flaws. Form 1 Award No. 32060
Turning to the merits of the issue, Claimant was charged with violating the following:
For his part, the Claimant insisted that he had not violated either of the aforementioned Rules, and that he had been "on time" for work citing his own testimony, in addition to that of his fellow employees. Further, the Organization strenuously maintained that because Claimant was on Carrier property prior to the requisite 7:00 A.M. start time, he could not be accused of not being "on time and available" for his duties.
The Organization and Claimant have begged the issue regarding Claimant's tardiness. In fact, Claimant was not "on time" or "available" for work at the 7:00 A.M. starting time on either of the dates at issue. Claimant's unfortunate but undisclosed discomfort on the morning of June 22 and lack of appropriate rain gear on June 23, 1994 do not negate the Assistant Roadmaster's reasonable assumption that he was indeed tardy on both June 22 and 23, 1994 in direct violation of Rule 1.15 of the Agreement.
With regard to Rule 1.6, it cannot be reasonably argued that Claimant's remarks to the Supervisor were inappropriate to the point of insubordination. We note that Assistant Seibert's approach was hardly gentle, but, in the circumstances, and in this Form I Award No. 32060
venue, the admonition "Get your ass up here with the rest of the guys", cannot be considered sufficiently provocative to justify Claimant's intemperate outburst.
While insubordinate behavior cannot be tolerated, there are two mitigating factors which we have considered in these particular circumstances which lead us to modify the discipline; (1) Foreman Weepie failed to deliver Roadmaster Seibert's message on the morning of June 22 and (2) This was the first disciplinary incident during Claimant's otherwise unblemished six year work history. Therefore, Carrier's imposition of a 30 working day suspension is excessive. Carrier is directed to reduce Claimant's original suspension of 30 working days, to 20 working days.
This Board, after consideration of the dispute identified above. hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.