PUBLIC LAW BOARD N0. 2206
AWARD N0. 36
CASE N0. 46
PARTIES TO THE DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Burlington Northern, Inc.
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Sectionman Gary P. Ovnan by letter dated
October 6, 1978, to be effective August 22, 1978, was
without just and sufficient cause and wholly disproportionate
to the alleged offense. (System File T-W-138C)
(2) That Gary P. Ovnan now be compensated for all time lost and
be reinstated with all seniority rights unimpaired.
OPINION OF BOARD:
In August 1978 Claimant, an eleven-year employe, was working as a
Sectionman under the supervision of Foreman Morris. On August 22, 1978
Ovnan was assigned to the task of cutting rail with a rail-cutting saw.
After Claimant had broken several saw blades in that work, Morris instructed
him to exchange jobs with another employe who was driving spikes with a maul.
Claimant took exception to that order, stating that he did not have to. take.
"goddamn orders" from the Foreman. When the Foreman persisted in his directions, Claimant raised the eight pound mall over his head in a threatening
gesture toward Morris, who wrestled with him and took the sledge hammer away
from him. According to Morris and other employes who witnessed the event,
Claimant was trying to strike the Foreman with the hammer. Ovnaa admits
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raising the maul over his head but denies that he intended to harm the Foreman.
After retrieving the hammer, Morris ordered Claimant to stop working and get
in the company vehicle to await transportation back to headquarters. Claimant
told the Foreman to "go to hell" but, after about one-half hour of standing
around, he did get into the truck. At some point, Morris offered Ovnan an
opportunity to come back to work if he would behave himself but Claimant
declined and Morris took him out of service.
We conclude upon examination of the entire record that Carrier provided
Claimant a fair and impartial investigation on September 13, 1978 at which
substantial probative evidence was developed to support charges of insubordination and attempted assault upon his supervisor. We find no support
for the Organization's contention that Claimant was justified in his reaction
and provoked by the Foreman. Nor can we conclude that the penalty of dismissal was inappropriately harsh, given the serious nature of the proven
misconduct. See Awards 2-6173; 3-22616. Leniency based upon Claimant's
relatively long service was a matter which Carrier should have considered
seriously but we cannot impose leniency in the facts of this case. See
Awards 3-17900; 3-20236..
AWARD
Claim denied.
C. L. Melberg, Carrier iember F. H. Funk, Employe Member
Dana E. Eischeg. Chairman
Date: / /G~/8/