PUBLIC LAW BOARD NO. 1838
Carrier File h'P7-WS-81-7
Parties Brotherhood of Maintenance of Way Employes
to and
Dispute Norfolk and Western Railway Carpany
Statement Claim on behalf of C. P. Prater in which the Organization
of protests his dismissal and requests that he be reinstated
Claim with
all
rights unimpaired and paid for all time lost until
he is returned to work.
Findings: The Board, after hearing upon the whole record and all
evidence, finds that the parties herein are Carrier and Employee within
the meaning of the Railway Labor Act, as amended, that this Board is
duly constituted by Agreement dated March 1, 1976, that it has
jurisdiction of the parties and the subject matter, and that the parties
were given due notice of the hearing held.
Claimant Prater, an extra force laborer, with a seniority date of
October 30, 1982, was dismissed from all service for the Carrier at
approximately 2:55 PM, April 15, 1981, for insubordination. Under date
of April 16, 1981, Claimant received from .Carrier, as required by the
schedule, confirmation, which, in pertinent part, read:
"You are hereby dismissed from all service with the
Norfolk and Western Railway Canpany. Your dismissal is
a result of your direct refusal to perform your duties
as section laborer as directed by Roadmaster E. M.
Johnson on April 15, 1981, at 2:55 PM, at Walkertown,
North Carolina.
Please return all company property now in your
possession."
Pursuant to Rule 33 which, in pertinent part, reads:
4
Page 2 Award No. 67
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"(a) An employe disciplined or dismissed will be
advised of the cause for such action in writing. Upon
a written request being made to the employe's hrtnediate
superior by the employe or his duly accredited
representative within ten calendar days from date of
advice, the engloye shall be given an investigation.
(b) The investigation shall be held within ten
calendar days after the receipt of request for same, if
practicable, and decision rendered within twenty
calendar days after completion of the investigation.
Claimant requested, and was granted, a
hearing which was held on
May 6, 1981. Under date of May 22, 1981, Claimant was notified in
pertinent part:
"A study of the transcript of the formal investigation
held in the office of the Agent-Trainmaster,
Winston-Salem, North Carolina, at 10:00 a.m., May 6,
1981, reveals that evidence presented at that
investigation upholds your dismissal from all service
as a Norfolk & Western Railway Company Maintenance of
Way Employee for your direct refusal to perform the
duties of section laborer as directed by Roadmaster E.
M. Johnson on April 15, 1981, at 2:55 PM at Walkertown,
North Carolina."
From that determination claimant appeals.
Organization avers, on behalf of Cl
aimant, that Carrier failed to
prove Claimant's culpability for the charge of insubordination; that the
supervisor's determination that Claimant was refusing to carry out the
normal duties of a laborer was motivated by spite founded upon an intent
to revenge sane bad feelings that Claimant alleges existed between he
and his immediate supervisor.
The circumstances, as reflected in the record, surrounding
Cl
aimant's dismissal were that, on april 15, 1981, Rnadmaster E. Johnson
went to a crossing where the section gang was working at Mile Post
R-116.5 in the vicinity of walkertcwn, North Carolina. Roadnaster
Page 3 Award No. 67 - /$3
S
Johnson, Claimant Prater and Section Foreman Stan Simmons were gathered
together in a conversation concerning Claimant's work efforts at the
site. Foadmaster Johnson inquired of Claimant how much work he had been
doing around the crossing such as pulling of ties, sticking in new
timbers and so on. Claimant assay responded that he had been
tamping ties with a fork and throwing in ballast. When asked
specifically about his working with the ties and doing normal section
laborers' work, Claimant sought to explain his failure to perform that
work by alluding to a problem with his back, responding that he could
not do the work because of his back.
Johnson then inquired of Foreman Simmons what response Claimant
would give to Simmons when he was instructed to do any kind of heavy
lifting or normal section work. Simmons informed Johnson that Claimant
would tell him that his back was bothering him and he could not do the
job; that was assertedly confirmed by Claimant. Claimant again was
directly addressed as to doing normal section laborers work at the
crossing and Claimant assertedly stated that
" ..he was not going to do that type of work as far as
lifting or just normal section laborers job as far as
working the crossing - pulling in ties or whatever. I
asked him, why? He said he was not going to do that.
Then he changed his mind. He said could, was able, to
do it, but was not. He said he was not going to take
the chance of being paralyzed the rest of his life,
that he was not going to do any heavy lifting or hard
work for Simmons, the company, or me."
Poadmaster Johnson went on to testify that prior to his becoming a
roadmaster on that district Claimant allegedly received a back injury
which had been causing problems for Claimant and the car:ony for a
period of three years, during which time Claimant periodically presented
letters from attending physicians saying that Claimant would be limited
Page 4 Award No. 67
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8
to light duty work. Roadmaster Johnson testified that finally the
Carrier made arrangements for Claimant to see a specialist in
orthopedics.
Assistant Poadmaster Massie testified that on
April
1, 1981, he
personally transported Claimant to the Lewis-Gale Medical Clinic in
Roanoke, Virginia for a consult with Dr. R. H. Fisher, a specialist in
orthopedics, that had been arranged for by Dr. George W. Ford, Carrier's
Chief Medical Officer.
When ARM Massie arrived with Claimant he informed Claimant to
advise the doctor that he wished to talk to the doctor when the
examination was over. At the conclusion of the explanation Massie was
called back into the examining roan with Claimant and the doctor. Dr.
Fisher, in Claimant's presence showed Massie Claimant's x-rays stating
that he (Dr. Fisher) did not see anything wrong with the x-rays of his
back, did not find anything wrong with his back, but had prescribed for
Claimant to build up a heel on a shoe approximately a half inch, and to
do approximately 75 sit-ups a day which would strengthen his back and
would help alleviate a wobble in Claimant's walk that swayed his back
back and forth.
Massie asked Dr. Fisher if he found anything that would keep
Claimant from doing a day's work as a section man. Dr. Fisher stated
"No", indicating that there was a chance of a light strain in his back
from a lack of not exercising his back and properly working. Claimant
was excused from the room and Massie again asked Dr. Fisher if the
doctor saw anything wrong with Claimant's back that would prevent him
from doing a regular section man's job. The doctor indicated that
Claimant was physically able, if he was willing to, to do this job.
.
Page 5 Award No. 67-/$3$
Massie testified that Claimant was in the room during the first portion
of the discussion wherein the doctor stated Claimant's fitness to
perform the work.
Claimant acknowledged that he had seen Dr. Fisher at the Lewis-Gale
Hospital is Roanoke on April lst, confirmed that the doctor advised him
that this backbone was veering to the left, that the muscles on the left
side were weak and "...he wanted to get my shoe built up half an inch on
the left foot to try to strengthen the muscle on the left side and
straighten my backbone up". However, Claimant indicated that the doctor
"changed" when Mr. Massie came into the roan. Claimant asserted that
the doctor asked Mr. Massie if there was anything light for Claimant to
do, to which Mr. Massie allegedly replied "No", and Claimant asserts
that the doctor became very quiet and he (Claimant) then left.
Claimant denied that Dr. Fisher made any statement to the effect
that Claimant could perform any of the normal duties of a section man.
However, Claimant did say that the doctor told Claimant to "...take some
exercises. Try to do at least 75 to 150 sit-ups a day." Claimant
testified that he did not take the doctors advice and did not do the
exercises stating that "...I am not able to do it. I try, I do as many
as I can, but I am not going ...I do not do it every day. It depends on
has my back is."
Claimant testified that he had received an injury in 1978, that he
was under various doctors care for that injury from 1978 until the
present, that he had been taken out of service because of his back
injury on several occasions, the longest being a total of 18 months
during which time he worked approximately a day and a half. Claimant
Page 6 Award No. 67
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3
testified that he had always been instructed by the doctors to do light
duty.
In response to the question of whether or not any doctor ever told
Claimant to go back to work, that there was nothing wrong with him,
Claimant replied:
"No sir. Other then ...well that Dr. Fisher did say go
back to work but he did not say to do the full extent
of the job except what Mr. Massie told me after he left
the office. He did say ...he said-Mr. Massie told me
then that Dr. Fisher said I could do all the work."
Claimant testified that he never refused to do any work at any
time.
However, Carrier called several other witnesses, some not
supervisors, all of whom testified that they heard Claimant in effect
state that Claimant wasn't going to do anything for Mr. Johnson, for his
supervisor or for his ccar-any that would hurt his back for the rest of
his life. On cross-examination some of the witnesses basically
confirmed their original statement but some added that Claimant did
state that he was not refusing the work, only that he was not able to do
the work.
Organization elicited frown Roadmaster Johnson on cross-examination
as well as Claimant's immediate supervisor, Foreman Simmons, that on
April 8th Claimant left work at approximately noon time on the pretext
of a statement to the effect that Claimant was going to get his heel
built up on his boot in compliance with Dr. Fisher's request. Claimant
showed up with a note on the morning of the 15th from Dr. Spellman, a
Carrier-physician, which, in pertinent part, read:
"CERTIFICATE TO RETURN TO WORK OR SCHOOL
Mr. Clyde Prater has been under my care from 3-9-81 to
and is able to return to work/school on
Page 7 Award No. 67
4-15-81. Remarks:
Clyde is
released to return to work,
but should be restricted to very little lifting and
none at all if possible.
Dr. /s/ Louis C. Spellman
Address: Rural Hill, N. C. Date: 4-14-81"
Raadmaster Johnson was informed of the note, and contacted Dr.
Ford, Carrier's Chief Medical Examiner. Johnson testified that Dr. Ford
told him to ignore Dr. Spellman's note, that Dr. Spellman had sent Dr.
Ford the same note. Roadmaster Johnson testified that he relied upon
Dr. Ford's authority as the Carrier's Chief Medical Examiner in his
disregarding Dr. Ford's note. He testified that Dr. Spellman was not an
orthopedic specialist, that he was aware that Dr. Fisher was an
orthopedic specialist, and that Dr. Ford had relied upon Dr. Fisher's
report. In that regard, Carrier introduced as one of its exhibits a
form letter of April 6, 1981, over Dr. George W. Ford's signature
addressed to Division Superintendent Bridger, Roanoke, which in
pertinent part, read:
"This is to advise that I have today received report of
examination of Mr. Clyde P. Prater, section laborer.
The following has been decided on his case:
He is qualified for work.
Additionally, Carrier introduced a follow-up letter of April 24,
1981, addressed to Superintendent Bridger which, in pertinent part read:
"Mr. Clyde P. Prater, Section Laborer, was qualified to
return to work after a negative examination by Dr.
Robert W. Fcitmnds, 8 December 1980. Dr. R. H. Fisher
saw the patient in 1979 and felt he was fit for work
then, and, in fact, I think he returned to work for a
while.
Page 8 Award No. 67
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Dr. Fisher (who is a very competent orthopedist)
re-examined Mr. Prater on 2 April 1981 and felt that
"he physically can pursue this type work (his own job)
and have encouraged him to do so."
Hifih this very thorough report in hand, I have so
advised btr. Prater's supervisor that he should be able
to return to his own job without limitations."
As of April 15th, the date of Claimant's discharge, Claimant had
not had the heel built up in his boot pursuant to his request to leave
the job at noon or April 8th. Claimant testified at his hearing that he
had picked up his boots on the morning of the day of his hearing, on may
6, 1981.
The facts surrounding Claimant's dismissal, although denied by
Claimant, remain essentially unchallenged:
Sometime in
1978 Claimant
received a back injury which kept him out of service for an extended
period of time, approximately eighteen (18) months. He had recurring
plaints about same and, according to his testirmny, had been reroved
from service and/or placed on light-duty status on several occasions
during that period of tim.
Carrier, faced with a continuing problem, sought to resolve the
question of the condition of Claimant's back by sending him to an
orthopedic specialist, Dr. Fisher, -on April lst for examination. On
April 2, 1981 Dr. Fisher sent Dr. Ford a "...very thorough report..."
which was apparently perceived by Dr. Ford on April 6th. Claimant was
returned to service without restriction "...qualified for work" on April
6, 1981.
On April 8, 1981 Claimant requested permission to leave work at
noon tire on the pretext of having a lift built into his heel pursuant
to the directions of Dr. Fisher. That was not done on April 15th.
Claimant subsequently offered the explanation that he did not want to do
Page 9 Award No. 67 - /638
it until after he had seen his own physician. However, on April 9th
Claimant went to see Dr. Louis Spellman, apparently complaining of back
pain. Dr. Spellman wrote a note on April 14th advising that Claimant
could cane back to work on the 15th "...but should be restricted to very
little lifting and none at all if possible". Dr. Spellman sent that
note to Dr. Ford.
Road Foreman Johnson was made aware of the note by Claimant's
immediate supervisor, Foreman Simmons. Johnson, Simmons and Claimant
had a meeting that was witnessed by several other erMloyees, wherein
Claimant categorically stated that "he was not going to do that type of
work as far as lifting or just normal section labor's job as far as
working the crossing - pulling in ties whatever" stating that "he
could, was able to do it but he was not going to take the chance of
being paralyzed the rest of his life, not going to do any heavy lifting
or hard work for Simmons, the company, or Mr. Johnson".
on May 6th Claimant gave the following answers to the following
questions:
"Q. Did you tell Mr. Johnson that you were not going
to do any type of hard work or heavy lifting that would
paralyze you for the rest of your life?
A. No sir. I told Mr. Johnson that I was not able to
put in ties and stuff like that that I could not help
that my back hurt ....
Q. Did you nuke the statement that you would not
do
the hard work?
A. No sir, I told him I could not refuse, I would not
refuse but that I had the right to ,sign off to go to
the doctor, that I was not able to
do
it, and if it
came down to it that is what I would do just flat
refusing no.
Q. Did you say anything to Mr. Johnson that would be
similar to the statement that you were not going to do
any type of hard work?
Page 10 Award No. 67
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a
A. Nope. Not any type of hard work. I just told him
that I was not able to be handling ties and rails and
things like that.
Q. Did you make any type statement that would be
similar to you could do the work but you would not do
it?
A. No, sir, I absolutely did not."
The Board finds that Carrier did not abuse its discretion to
determine the issue of credibility concerning the nature and content of
Claimant's declarations on April 15th. Claimants denial directly
confronts and denies the recollection of virtually all of the witnesses
called that were present, or observed and overheard that meeting,
including sore of Claimant's co-workers. We find nothing in the record
that would permit the Board to conclude
the Carrier
abused its
discretion to determine such issues of credibility
when there
is
conflicting testimony. The Board does not sit as a trier of the facts,
but is confined to a review of the record. In that regard see Second
Division Award No. 6489 (Bergman) which, in pertinent part, held:
"Although the evidence has been discussed, it does not
rrean that we could substitute our judgment for that of
the Carrier. The
precedent for
this policy is
overwhelming in prior Awards. Neither do we sit to do
equity.
We are an appellate body, in effect., to review
. the record and consider the contentions of the parties.
We look for evidence of prejudgment, abuse of
discretion, arbitrary or capricious action which could
lead to a reversal on those grounds. We do not resolve
conflicts in testimony unless the judgment made may
fall into the categories listed above. As indicated,
we find substantial evidence to support the conclusion
reached."
Organization has argued that Claimant was placed in a conundrum not
of his own making when he received the note from Dr. Spellman on April
14th'and was relying thereon in making his statement of April 15th.
' Page 11 Award No. 67 -. / $3$
Carrier obviously concluded, based upon competent medical opinion
fran Dr. Fisher to Dr. Ford, that Claimant was seeking to cloak himself
in
the protection of
a doctor's note in refusing to do any heavy, normal
laborers work on
the 15th,
based upon his assertion of back pain on the
9th to Dr. Spellman. Carrier concluded that
there was
no medical
justification for such complaints based upon
the
orthopedic specialist's
examination on the lst and no reported injury from Claimant up to and
including the 15th.
The Board is satisfied that Carrier concluded from the conflict in
the testimony that Claimant did, in fact, hear the statement by Dr.
Fisher, notwithstanding Claimant's denial thereof, that Claimant was
capable of performing normal. laborer's work made in
the presence
of ARM
Massie and Claimant after
the physical
examination on the 1st. Claimant
was able to recall virtually all of the details of that portion of the
conversation that took place in his presence, which corroborated ARM
Massie's testimony, except that essential portion dealing with
Claimant's fitness for duties.
whether Claimant did or did not have injuries or a condition
justifying his refusal for, work is not a question that this Board is
empowered to resolve. Nor do we find it a justiciable issue warranting
the appointment of a medical board in view of the present record.
Claimant was removed fran service on the 15th on the charge of
insubordination arising from his alleged refusal to perform work.
Claimant maintains that he did not refuse the work but that he was
unable to do the work (the preponderance of evidence, however, indicates
what Claimant really stated on the 15th was that he was able to, but was
unwilling to, out of fear of possible permanent injury).
Claimant's hearing was scheduled for, and held, on may 6th. Ample
time existed for Claimant to contact any of the physicians
testified to and whose advice he asserted he was relyin intervening dates for medical support for his contentions.
was ever produced at the hearing by Claimant to the effect
an on-going medical condition or of any restriction by hi
physicians. Claimant clearly knew and understood what th Claimant put much relevance upon his association with a Dr.
Claimant contended was a Professor of Orthopedic Surgeons at
School of Medicine, and a Dr. Wong of the University
However, Claimant offered no docwnentation or evidenc diagnosis, reports, or conclusions. Neither did Claimant
representatives, ever made any request for a postponement for an
opportunity to develop such evidence or documentation.
Scme many months after the hearing before the Board, organization
sought to submit copies of depositions of various medical witnesses in a
personal injury claim made by Claimant in support of Claimant's
testimony at his discipline hearing. Carrier strenuously objected
thereto, citing an array of Awards in support of their position that
such an ex parte submission exceeds the parameters established by the
Railway Labor Act and the recognized practice and procedures in the
handling of such claims on the property.
We find ample support for Carrier's position and crnist agree
therewith. Ln Third Division Award No. 20279, it was held in pertinent
part:
g
e
e
that he had
on in the
No evidence
that he had
s "treating"
issue was.
Revere, who
Bowman Gray
of Virginia.
.of their
, nor his
"Claim Carrier violated the Agreement when it dismissed
Extra Force laborer for being absent without permission
Page 13 Award No. 67
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3
and for being an unsafe employe, that he be restored to
service and paid for time lost, denied. The Board
stated: '***Not until the handling in the usual manner
on the property was exhausted did the Organization
raise substantive matters, by letter of May 23, 1973,
preliminary to appealing to this Board. In our
considered judgment, this belated effort to amend the
claim is without legal effect and is in contravention
of Section 3, First (i) of the Act which requires
handling in the 'usual manner up to and including the
chief operating officer'. We are of the further
opinion that Section 3, First (i) contemplates that the
claim denied by the `ef operating officer, on the
property, is claim which 'may be referred' to the
Board. (See, in this connection, Award No. 13235,
Dorsey.)***In view of what this Board has stated above,
we find that the Agreement has not been violated, and
the claim must be denied. Nevertheless, even if this
Board were to consider the substantive merits of the
discharge, the claim must still be denied.'
We find that Claimants contentions that his removal from service
was founded on motives of spite and revenge to be wholly specious.
There is no evidence in the record to support Claimant's conclusions
that he was the victim of harassment or abuse by his supervisors in the
manner in which he was treated or that they were out to "get him"
because he took exception to the way in which he was being treated.
In Second Division Award No. 8520 (Vernon), it was held:
"The general arbitral rule regarding insubordination
cases is that enployees are bound to 'obey now and
grieve later', even if instructions are believed to be
contrary to the contract. There is one exception to
the 'obey now, grieve later' rule. This might be
referred to as the 'safety exception'. It has been
previously held that an employee need not conply with
orders that are without sufficient regard to the
employee's safety as to imperil their life or limb.
However, the safety exception cannot be invoked in all
situations where canpliance with an order would be
hazardous to life or limb. It must be recognized that
hazard and risk are inherent as a matter of business
necessity in many jobs. in cases where risk and hazard
are inherent in an employee's position, the safety
exception can only be successfully invoked and when the
coupany's order was unreasonably careless and failed to
Page 14 Award No. 67 - / g3
a
take into consideration necessary precautions to limit
the inherent danger to a sufficient and reasonable
degree. Also, it has been held, when the organization
invokes the safety exception, the burden is on them to
show that lack of safety was the real reason at the
time of refusal..."
We find sufficient justification in this record from which Carrier
concluded that Claimant was on notice as to its position concerning his
medical condition as of April 1st. Claimant offered no testimony,
evidence or documentation that he made any effort after April 1st prior
to April 9th to seek support for his apparent conclusion that he was not
able to do a section laborers work. We find that Claimant's efforts on
the 9th to go to a doctor for alleged back complaints, particularly when
viewed against
the excuse
given to his supervisor, and his failure to
complain to his supervisor of any back pain or report any injury on the
9th, to be wholly lacking in credibility, but consistent with Carrier's
oonclusion that Claimant was using an alleged back injury as a
subterfuge to avoid work.
Fourth Division Award No. 1991 (Dolnick) held in pertinent part:
"It is a well established principle of the Board, that
the evaluation of the facts in discharge cases is the
responsibility of the Carrier's officers who conduct
the hearing and the investigation. our function is to
examine the record, nuke sure that the Claimant was
afforded a fair and impartial hearing- under the terms
of the Agreement; that there was no predetermined bias
or judgment against the Claimant; that there was no
abuse of discretion in the imposition of the penalty;
and that the punishment fits the crime, i.e., that the
discipline was not arbitrary, unreasonable or
excessive."
We find that Carrier has fairly met its burden to establish that on
April 15th Claimant did, in fact, refuse to carry out his assignment.
We cannot conclude from this record that the reasons offered by Claimant
Page 15 Award No. 67
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for so refusing were reasonable or warranted in the circumstances.
Ample opportunity existed for Claimant to document or support, by
competent medical opinion, his reasons for refusing to do regular
laborer's work. Claimant chose not to avail himself of that
opportunity.
Claimant was ably and aggressively represented throughout his
hearing wherein all possible evidence .in Claimant's favor was adduced.
Notwithstanding, Carrier concluded that Claimant was insubordinate and
dismissed him.
Second Division Award No. 4782 (Whiting) held, in pertinent part:
"The proffered testimony might be relevant to a
question as to whether the directions given were proper
or reasonable, but such a question does not excuse or
justify disobedience to the directions. To hold
otherwise would make each employee his own judge of
what is reasonable and what work he will perform. No
business could be conducted on the basis of such
anarchy."
It has too often been held to require further citation in support
thereof that insubordination is a dismissible offense. The record is
devoid of any circumstances mitigating in Claimant's favor that would
warrant an intrusion into the results that occurred on the property.
Therefore, we must conclude this claim be denied.
AWABD: Claim denied.
11, loyee~1Ab b~ MaTber
n
r/'
A. Thomas Van ; irman
and Neutral Member
Issued at Salem, New Jersey, March 2, 1984.