PUBLIC LA14 BOARD N0. 2206
AWARD N0.
CASE N0. 17
PARTIES TO THE DISPUTE:
Brotherhood of Mainte-:ance of Way Employees
- and -
Burlington Northern, Inc.
STATEMENT OF CLAIM
:
"Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Sectionman D.E. Rhodes, August 8, 1977,
was without just and sufficient cause and wholly disproportionate to the alleged offense. (System File 17-3
1-IW-20 11/ 17 / 77 )
(2) Sectionman D.E. Rhodes be reinstated to his position of
Sectionman and paid for all time lost."
OPINION
OF BOARD:
In July 1977 Claimant D.E. Rhodes was employed as a Section Laborer
in Carrier's Willis Yard, Galesburg, Illinois, under the supervision of
Foreman Guadalupe Alvarado. As a result of an incident which occurred
July 12, 1977, Claimant was served with notice to attend an investigation
on July 19, 1977 for the purpose of:
...ascertaining the facts and determining your
responsibility in connection with your alleged
failure to comply with instructions given'you
promptly and otherwise being quarrelsome and
argumentative with section foreman at about
3:00 PM, July 12, 1977, in the vicinity of the
South Leg Coach Yard Wye, Willis Yard, Galesburg,
Illinois...
Following the hearing, Claimant was advised on August 8, 1977 that he
had been found guilty as charged and was dismissed from service effective
that date. Under date of September 1, 1977 the instant claim seeking his
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reinstatement was filed by the General Chairman. The Organization pressed
the claim without resolution on the property. In May 1978 a tentative settlement apparently was reached but Claimant later disavowed that settlement
and sought complete vindication. The details of the unsuccessful settlement
negotiations were not placed upon our record in furtherance of the wellrecognized principles that such efforts should be encouraged in grievance
handling without fear of possible prejudicial disclosure in arbitration should
the settlement efforts fail.
Following due notice to all interested parties, we heard this case on
February 13, 1979. Claimant was present throughout the hearing and was
represented by International Vice President F. H. Funk. Carrier was represented by Mr. Walter Hodynsky, Assistant Manager-Labor Relations. Claimant
requested and, in the absence, of objections, was granted leave to tape record
the hearing.
Our review of the record persuades us that procedural objections raised
by the Organization must be dismissed. We find no procedural defect in the
notice of hearing nor in the fact that the Foreman was not also charged. Nor do
we find persuasive the allegations of prejudice or pre-judgement by the
Hearing Officer. In any event, these allegations were raised de nova at our
hearing.
Analysis of the record evidence makes it clear that Claimant, without
justification or provocation, failed and/or refused promptly to follow reasonable orders from his·duly authorized superior. In plain words he was insubordinate, quarrelsome and argumentative. His
misconduct stopped
short of
verbal or physical abuse but nonetheless he engaged in serious misconduct.
His actions warrant severe discipline, but in our considered judgement, dismissal was excessive in this case. lie note that his disciplinary record
apparently was clear before this incident-and we are not persuaded that he is
incorrigible or incapable of learning from this experience. The discipline
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shall be reduced from dismissal to
suspension without
pay. Claimant is
returned to service without benefits or
compensation for
time lost, on con
dition that he meets the regular physical requirements for the position of
Sectionman.
FINDINGS:
Public Law Board No. 2206, upon the whole record and all of the evidence,
finds and holds as follows:
1. That the Carrier and Employee involved in this dispute are,
respectively, Carrier and Employee within the meaning of the Railway Labor
Act;
2. that the Board has jurisdiction over the dispute involved herein;
and
3. that the discipline of dismissal was excessive in this case.
AWARD
Claim sustain to the extent indicated in the Opinion.
Dana E. Eischen, hate
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F.
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Funk, Employee Membera`fl, Carrier Member