AWARD N0. 40 CASE N0. 55 PARTIES TO THE DISPUTE: Brotherood of Maintenance of Way Employes and Burlington Northern, Inc.

 STATEMENT OF CIALi:






OP LIION OF BOA-RD:
 Claimant was employed as a machine operator assigned to a steel relay gang at Interbay, Washington. The gang usually worked regularly scheduled hours 7:00 AM to 3:30 PM but, commencing August 4, 1978, Claimant and the other employes on the gang were assigned to work one or two hours overtime each afternoon. On August 9, 1978 Claimant approached his Foreman at about 1:30 PM and asked to be released at the regular quitting time in order to keep an appointment with an attorney. The Foreman denied his request and informed Claimant that Roadmaster Mouat had directed that all of the gang employes must work overtime that day. At the suggestion of the Forman, Claimant approached.the Roadmaster directly at about 3:00 PM and asked permission to leave for his lawyer's appointment. Houat denied that request


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and advised Claimant that he was needed to work overtime, whereupon Claimant stated in words or substance that he was leaving at 3:30 PM with or without permission. At 3:30 PM Claimant did, in fact, leave the job and he did not work the overtime as ordered.
 Under date of August 16, 1978 Claimant was served with a Notice of Hearing, as follows:

        "You are hereby notified in accordance with the Brotherhood of Maintenance of Way Employee's Schedule to attend investigation in the tool house at Interbay, Wa. on Thursday, August 24, 1978 at 11:00 A.M., to ascertain the facts and determine your responsibiity in connection with your alleged insubordination and failure to comply with instructions from proper authority on August 9, 1978."


Upon receipt of the foregoing hearing notice, Claimant filed through the

 Organization a request for an "unjust treatment" hearing, citing Rules 15-B,

 40 and 60 of the Agreement. Carrier's Superintendent responded to that

 request on August 30, 1978, as follows

        Dear Mr. Tuiberg:


        I have your letter of August 21, 1978 requesting a hearing account alleged unjust treatment of John H. Russo by Roadmaster G. J. Mouat on August 9, 1978.


        We will reschedule the original investigation, earlier postponed at your request, to 10 a.m. at Interbay, Washington on September 8, 1978, and by copy of this letter to Mr. Mouat, will he kindly arrange to reschedule the investigation for that time.


        That investigation will bring out thoroughly and completely whether or not Mr. Russo underwent any unjust treatment.


        Sincerely,


        ~J~'G~=-srY>

        D . 11. Burns

        Superintendent


        cc: Mr. R. F. Knutson

        P,7r. G. J. DIouat

                                                Awd. 40 - 2206 3


      The hearing was held on September 8, 1978 and Claimant appeared and

was represented by his Vice General Chairman. Review of the transcript
 indicates that Claimant knew of the lawyer's appointment on August 4, 1978,
 that shortly before end of shift on August 9, 1978 he requested and was
 denied permission to leave early, that he orally repudiated the directive
 of the Roadmaster not to leave early, and that he did leave early without
 permission. The Organization appeals the ten-day suspension imposed by
 Carrier upon Claimant for this proven misconduct primarily upon the ground
 that Carrier violated Rule 15-B of the Agreement, thereby justifying
 Claimant's otherwise insubordinate behavior. The Organization also asserts
 that Carrier violated Rule 6= by not according Claimant a separate hearing
 on the question whether Carrier's denial of his request was "unjust treatment".
 The Agreement provisions upon which the Organization bases its claim read
 as follows: -

        "RULE 15. LEAVE OF ABSENCE.


        B. The arbitrary refusal of a reasonable amount of leave of absence to employes when they can be spared or failure to handle promptly cases involving sick-

        ness or business matters of serious importance to the.

        employes, is an improper practice and :nay be handled

        as unjust treatment under this Agreement."


        RULE 62 . UNJUST TREATMENT.


        An employe who considers himself unjustly treated in matters other than discipline, or in matters other than those arising out of the interpretation and application of tie rules of this Agreement, shall have the same right o= hearing and appeal as provided in Rule ?0, if written request is made to his ir~nediate superior within twenty (20) calendar days after the date of the occurrence of the cause for complaint."

Awd. 40 - 2206
 4 ..

 In the facts of this case, we find no merit in the assertion that Carrier violated Claimant's right to an "unjust treatment" hearing. The question whether Carrier's denial of the early release request was proper was joined fully in the September 8, 1978 hearing. A separate subsequent hearing on this issue would have been redundant; even if, arguendo, an employe charged with misconduct is entitled to use the "unjust treatment" hearing as a tactical response, a question upon which we have serious reservations. In any event, the fully developed record for the September 8, 1978 hearing shows no arbitrary or unreasonable denial by Carrier of the belated request to avoid overtime work. We conclude that Carrier did not violate Rule 15-B in this case. See PLB 2206-16. Nor can we find inappropriate the imposition of a ten-day suspension for Claimant's proven insubordinate refusal to obey the reasonable directions of his authorized supervisors. The claim must be denied.

AWARD

Claim denied.


C. L. Melberg, Carrier er

                  17


F. H. Funk, Employe :Member

 Dana E. Eischen, Chairman

 Date: f 2