BEFORE PUBLIC LAW BOARD NO. 1837
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
AND
NORFOLK & WESTERN RAILWAY COMPANY
Case No. 71
STATEMENT OF CLAIM: Claim
of
the System Committee of the
Brotherhood
1. The dismissal of Trackman Max Ish for alleged
insubordination and conduct unbecoming an employee
was without just and sufficient cause and on the
basis of an unproven and disproven charge and in
violation of the Agreement. (Rules 22 (A) and 22
(E))
2. Claimant Ish shall be allowed the remedy
prescribed in Rule 22 (E), including seniority,
vacation, and all other rights unimpaired and that
he be paid for all monies lost beginning March 6,
1989, to date of reinstatment.
FINDINGS:
Claimant Max Ish was employed by the Carrier as a trackman.
On March 8, 1989, the carrier notified the Claimant to
appear for a formal investigation in connection with the
following charges:
. . . to determine your responsibility in
connection with your being insubordinate and
conduct unbecoming an employee when you directed
obscene and disrespectful language to Assistant
Roadmaster S. B. Soest on March 6, 1989.
A hearing was held on March 17, 1989; and on March 28, 1989,
the Carrier notified the Claimant that he had been found guilty
of all charges and was dismissed. The organization thereafter
A"
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filed a claim on Claimant's behalf, challenging his dismissal.
This Board has reviewed the evidence and testimony in this
case, and we find that there is no merit to the procedural
arguments raised by both sides.
With respect to the substantive question, this Board finds
that there is sufficient evidence in the record to support the
finding that the Claimant was guilty of insubordination and
conduct unbecoming an employee on March 6, 1989. The record is
clear that the Claimant used profane language directed at a
supervisor and, at the same time, refused to perform work that
was being assigned by that supervisor. The Claimant subsequently
apologized for his behavior, thereby admitting that he had used
that profane language and directed it at his supervisor.
Once this Board has determined that there is sufficient
evidence in the record to support the guilty finding, we next
turn our attention to the type of discipline imposed. This
Board will not set aside a carrier's imposition of discipline
unless we find its action to have been unreasonable, arbitrary,
or capricious.
In the case at hand, the Claimant has been disciplined on
numerous occasions and had previously been suspended for fifteen
days and forty-four days for similar offenses. Given the nature
of the wrongdoing in this case, and the previous discipline
record of the Claimant, this Board cannot find that the action
taken by the Carrier in terminating his employment was
unreasonable, arbitrary, or capricious. Therefore, the claim
2
must be denied.
AWARD:
Carrier Memb
Dated:;dp,·z
AtvD 7/ - /83'7
Claim denied.
TR R. Z'IkV~YERS1
Neutral Meter
anization Mem3