i
PUBLIC LAW BOARD N0. 1760
Award No. 129
Case No. 129
Docket No. MW-FTW-89-49
Parties Brotherhood of Maintenance of Way Employes
to and
Dispute Norfolk and Western Railway Company
(Former Wabash)
Statement
of Claim: Claim of J. L. Dixon- appealing his thirty day suspension
assessed as the result of a January 19, 1990
investigation, concerning failure to protect job assignment
on November 17, 1989.
Findings: The Board has jurisdiction of the of this case by reason of
the parties Agreement establishing this Board therefor.
The Claimant, Laborer J. L. Dixon-, on Friday was a
member of 7-W Gang which was one of three gangs (13
men)assigned to lay rail on Wabash #2 track at Ft. Wayne,
Indiana. Early that morning Track Supervisor R. Fluty
advised Foreman Fanning that there would be mandatory
overtime for all employees that day. Fanning was told that
all employees were to stay on the job until the track was
back in service or until they were released.
Foreman Fanning, at approximately 10:30 AM, instructed
the Claimant to stay on the job until the work was completed
and he was released on November 17. The Claimant told the
Foreman that he could not work overtime because he had
unspecified personal business to attend to. The Foreman
instructed the Claimant to talk to Track Supervisor Fluty if
he wanted to be off. The Claimant never spoke to Mr. Fluty
and left his assignment at the regular quitting time on
November 17, 1989.
The Claimant was cited to an investigation on the
charge of failure to protect his assignment and with failure
to comply with direct instructions issued by his Foreman on
November 17, 1989.
The Carrier concluded from the transcript that Claimant
was culpable of the charge placed against him. He was
suspended from service for 30 days as discipline therefor.
This is a unique case. It is clear after commencing
work on November 17, 1989 that the Claimant was notified by
his Foreman that the gang would be required to work
overtime. The Claimant, at that time, notified his Foreman
that he could not work any overtime that day on account of
personal business. This is the unique aspect. The Gang
Foreman instructed the Claimant to talk to the Roadmaster if
he desired to get off early (without working overtime) to
which the Claimant advised him that he had informed his
immediate supervisor and therefore, it was up to the
Foreman, if necessary, to talk to the Roadmaster. The
Claimant walked off the job at the end of the 8 hour shift.
While the remainder of his gang worked about two hours of
the required overtime because Track Supervisor Fluty closed
the operation down. Agreement Rule 24 reads:
"An employee desiring to be absent from service must obtain
permission from his Foreman or the proper officer. An
employee detained from work on account of sickness or for
other unavoidable cause shall notify his Foreman or the
proper officer as early as possible."
The testimony of at least Foreman Abrams and Track
Supervisor Fluty was that any man needing to get off for
personal reasons was permitted to be off. Also, they
acdnitted that the past practice had been that the employee
need only tell his Foreman when they were in need of being
absent and he would grant permission to be off. It was
alleged that subsequent to this incident Track Supervisor
Fluty reversed his previous instructions.
While there was a conflict in the testimony as to
whether Foreman Fanning in fact had told the crew they were
to work overtime, he saying that he did and they saying that
he did not and had learned of the required overtime from
"rumors." The Carrier believed Fanning and we see no real
reason to disagree therewith.
The Claimant, who one time had been in his 24 years of
service a Laborer, a Foreman, an Assistant Roadmaster and a
Roadmaster, testified that in the past when he had to be off
for any reason he would and did always deal with his
immediate supervisor because once he had gone to a higher
level and he was instructed to go back and see his immediate
supervisor. The Board finds that Foreman Fanning in
carrying out Fluty's instructions did tell the Claimant to
work overtime. He did, in effect, tell the Claimant that if
he wanted to be off and not work the overtime the Claimant
had to talk to Mr. Fluty in order to receive that
permission. Consequently, that must be construed as, in
effect, telling the Claimant he could not be off with his
permission and it was otherwise necessary to get permission
from Fluty. However, the Board finds that those
circumstances of the Claimant's excellent background serve
-3- Award No. 129
to mitigate the degree of the discipline. Consequently,
because this is not the usual case of insubordination, but
rather arises more as the result of an admitted work
practice and the difference in the Foreman's and the
Claimant's understanding of how to properly communicate
within the chain of command will serve to mitigate the
discipline. Claimant was wrong and therefore he is being
disciplined for it. However, the 30 days assessed is
reduced to 15 days.
Award: Claim disposed of as per findings.
Order: Carrier is directed to make this Award effective within
thirty (30) days of date of issuance shown below.
,Ij
~Uwr;-V~
)-a.
*,A:tQ
S. Hartmons, Jr. Employee Member . F. il Jr. rrier Member
v
Arthur T. Van t, Chairman
and Neutral Member
Issued December 31, 1991.