NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) *
* AWARD rrO. 17 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

Public Law Board No. 2406 was established pursuant to the provisions of Section 3, Second (Public Law 89-456) of the Railway Labor Act and the applicable rules of the National Mediation Board. The parties, the National Railroad Passenger Corporation (Amtrak, hereinafter the Carrier) and the Brotherhood of Maintenance of Way Employes (hereinafter the Organization), are duly constituted carrier and labor organization representatives as those terms. are defind in Sections 1 and 3 of the Railway Labor Act. After hearing and upon the record, this Bard finds that it has Durisdiction to resolve the following claim:

      "The Claimant, Winston Mills, Trackman, Baltimore, MD, was dismissed in an arbitrary and capricious manner.


      Dismissal was prejudiced; predicated on the fact Claimant was Grievance Chairman, duly elected to represent B.M.W.E. members in matters of concern between Employes and Carrier.


      Claimant Mills' service record be cleared of all charges resulting frcm the incidents occurring on June 14, 1979.


      Claimant Mills be restored to service, with seniority and all other rights and privileges unimpaired, and he be compensated for all wage losses in accordance with the provisions of Rule 74(d)." Prior to his dismissal the Claimant was assigned as a Trackmam


on Gang No. A082.On June 14, 1979 he was removed from service.
 Public Law Board Pro.. 2406 Case/Award No. 17 Page Two By letter dated June 20, 1979, he was notified to attend a trial to determine his responsibility regarding the following charge:,

      "Violation of NRPC General Rule I...Employees will not be retained in the service who are insubordinate... quarrelsome or otherwise vicious... Violation of NRPC General Rule J...profane or vulgar language is forbidden. Violence, fighting...threatening or interfering with other employees... is prohibited.


      Specification I: On June 14, 1979, at approximately 11:00 AM, in the vicinity of MP 90.6, North Point, you attempted to prevent Assistant Supervisor of Track . J. Aviles from discussing work related business with Trackman Milton Lawrence; and you did.not obey Mr. Aviles' directives to allow h=m to speak with M. Lawrence; additionally, you then did not obey Mr. Aviles' directive that you accompany Mr. Aviles to his company vehicle.


Specification II': On June 14, 1979, at approximately 11:10 AM, in the vicinity of MP 90.6, North Point, you directed profane and vulgar language to Assistant Supervisor of Track J. Aviles; you threatened Mr. Aviles with a spike hammer and you physically attacked and injured Assistant Supervisor of Track J. Aviles." The trial scheduled for July 10, 1979 was postponed at the request of the Claimant's representative. until July 17', 1979. On the basis of facts developed at the trial, the Claimant was found guilty as charged and permanently dismissed from service. The Claimant entered an appeal with the Assistant Chief Engineer; the appeal was heard on August 10, 1979 and the charges were,sustained; the appeal was progressed to the Director of Labor Relations and was denied; and the case is now before Public Law Board No. 2406
      Public Law Board Nq,.. 2406 Case /Award No. 17 Page Three The applicable Rules of Conduct' read as follows:


      "I. Employees will not be retained in the service who

      are insubordinate, dishonest, immoral, quarrelsome or

      otherwise vicious, or who do not conduct themselves in

      such a manner that the Company will not be subjected

      to criticism and loss of good will.

J. Courteous conduct is required of all employees in
 their dealing with the public, their subordinates and
 each other. Boisterous, profane or vulgar language
 is forbidden. Violence, fighting,. horseplay, threaten
 ing or interfering with other employees or while on
 duty is prohibited."
 Based on the credible evidence of record the Board finds
 that the discipline imposed was commensurate with the proven
 offense.
 There were two issues in the claim: (1) whether the
 Claimant was insubordinate in refusing an order given by Assis
 tant Track Supervisor, J. R. Aviles, to discuss privately a
 question concerning an alleged safety gear violation of another
 Trackman; and (2) the- Claimant's responsibility regarding a
 physical altercation that followed the above alleged insubordination
 In addressing the first issue this Board finds that the
 Claimant was not insubordinate when he refused to privately discuss
 an alleged safety equipment violation of an employee working with
 the Claimant. in Gang No. A082 with the Assistant Track Supervisor.
 We further find that the Claimant was rot insubordinate when he
 used "vigorous demeanor" in discussing the matter with the Super-'
 visor in front of other employees.
                                    Public Law Board No. 2406

                                    Case/Award No : 17

                                    Page Pour

The entire episode began when the Assistnat Track Supervisor noticed that a Trac.'man, Milton Lawrence, was not wearing his safety goggles. The Claimant, a duly designated Organization representative, protested that Mr. Lawrence had dropped his glasses, and was hending down to retrieve them when 'the Supervisor noticed ha=,and told him he was being charged for a safety violation. The Claimant was acting as an. Organization representative when he responded to the charge leveled against an employee he represented. The Claimant. would have been bet-.._r advised to have not responded, and waited to raise defenses and pursue the matter if,and when,it . reached the forma? steps of. the grievance process. However, the Claimant, is his position as representative and In the circumstances of the moment, was not insubordinate in refusing to discuss the mattar privately. La- light of the Claimant's Organization position, his insistence on an open discussion did not rise to the level. of insubordination.
 The Claimant's behavior in the course of events that followed, however, was violent and threatening and in clear violation of Rule ,7. Mr. Perry, who was checking FP,A violations with the Supervisor at the time, credibly described those events as follows: When the Claimant interceded on behalf of Mr. Lawrence, the Shuperv isor told the Claimant that he was not talking to hixt (about the violation) but to Mr. Lawrence. =he Supervisor also told the Claimant that he wanted to speak with him privately at his truck.
 Public Law Board dc. 2406
 Case /Award Yk. 1 7
 ' ?age Five
 When the Claimant refused, the Supervisor 3.%s tructed a Foreman
 to remove the Clai=ant f.=om duty. The Clai=m at then left and
 entered a bus. A short time later he stood up and began calling
 the Supervisor disparaging names. Se was told to watch h=s
 language. Th a Claimant then threw down his hat and gcggIes and
 went back down to the track. Several employees restrained him
 after ha picIt-cad up a hammer and he threw the hammer down. As
 the Supervj.sar was wal:kiag away -2-CM the scene, the Claimant
 s=uck aim is the back of the neck. The Su=er-risor =1 1 cc t_-e
 g=ou_,td. The Claimant kicked him several times. . ^.`:e Su=er-riLsor
 was eventually helped off the ground be Air. Perry, who later
 drove him to the hospital
 The C1ai~a:.t's account od what hap;eaed is that, after thei_discussion, the Sumervisar followed the Claimant back to the r=ack. He allegedly heard sameehe shout,, "Lcok out, he's got scmething in his. hand." The. Claimant, acting on the instincts he was taught as a Marine Green Beret instructor, turned and de=ended himself by "beating the hell" out of Mr. Aviles More the latter had a chines to "attack" ham. The Claimant also testified that he was aggravated and provoked by the manner iz which. ~~ . Aviles handled
 tae a1leced safety violation.
      A reading of °-.=.e =edible evidence cf record reveals that

t.:e Claimant leveled an unprovoked, ext=ardinarily violent
 attack at t. :e Suae_-viscr . r4hile the Super v=sor may have been
 aggressive on his ;a- --t dining the. dlscussi ca w1`r.ni tae Claimant,
 Public Law Board No: 2406 Case/Award No. 17 Page Six this verbal confrontation did not justify the violent Physical response of the Claimant. Dismissal was-reasonable discipline in light of the seriousness of the offense. Accordingly, the claim is denied.

      AWARD: Claim denied.


R. Radice, Carrier -Member 67. E. LaRue, Organization ?ember

              Richard R. Rasher, Chairman and Neutral Member


September 20, 1981 Philadelphia, PA