PUBLIC LAW BOARD NO. 2529
Joseph Lazar, Referee
AWARD NO. 25
CASE NO. 34
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO ) - and
DISPUTE ) BURLINGTON NORTHERN RAILROAD (Former Fort
Worth & Denver Railway Company)
STATEMENT
OF CLAIM:
1. That the dismissal of Mr. R. J. Duckett
was without just and sufficient cause and
in violation of the current Agreement.
2. That the Carrier shall now return Claimant
to his former position with seniority and
all rights restored unimpaired and with
compensation for all wage loss suffered.
FINDINGS: By reason of the Memorandum of Agreement signed
November 16, 1979, and upon the whole record
and all the evidence, the Board finds that the parties herein are
employe and Carrier within the meaning of the Railway Labor Act,
as amended, and that it has jurisdiction.
- Claimant Roderick J. Duckett has been an employee
of this Carrier since September 3, 1980. On October 18, 1983,
Claimant was working with the Carrier's Steel Gang, under the dir
ect supervision of Extra Gang Foreman, Mr. Jimmy Wayne Moss, Jr.,
in the vicinity of Fruitland, Texas. On November 9, 1983, the Car
rier dismissed Claimant from its service, writing him: "This is to
notify you that you are hereby dismissed from the service of the
Burlington Northern
Railroad for violation of Rules 563, 564 and
567 of the Burlington Northern Safety Rules in connection with your
insubordinate conduct on October 18, 1983 while assigned as a Lab
orer on steel gang working in the vicinity of Fruitland, Texas,
as evidenced by a formal investigation afforded you on October 26,
1983."
PLB NO. 2529 AWARD NO. 25 (page 2)
CASE NO. 34
Rules 563, 564, and 576 of the Burlington
Northern Safety Rules read as follows:
"563. Burlington Northern service demands the faithful, intelligent, courteous and safe discharge
of duty. Courteous, orderly conduct is required
of all employees. Boisterous, profane, sexist
or vulgar language is forbidden. Employees must
not enter into altercation with any person, regardless of provocation, but will make note of
the facts and report such incident in-writing
to their immediate supervisor."
"564. Employees will not be retained in the service who
are careless of the safety of themselves or others,
disloyal, insubordinate, dishonest, immoral, quarrelsome or otherwise vicious, or who conduct themselves in such a manner that the railroad will be
subjected to criticism and loss of good will."
"576. Employees must comply with instructions from
proper authority."
The transcript of investigation shows the following
questions by the Hearing officer and answers by the Foreman:
"Q. On the afternoon of October 18, 1983, did you
instruct Mr. Duckett as to some duties you wished
him to perform?
A. Yes sir.
Q. Would you please tell us what your instructions were?
A. To go up ahead of the crane and help another man
straighten plates.
Q. What happened when you gave these instructions?
A. Mr. Duckett walked about a pole length down the
track and turned around and came back and said that
he was not going down there and straighten plates
in front of the Pettibone. He wanted to stay back
behind the machines.
Q. Did Mr. Duckett give you any reason for this?
A. No sir.
Q. At this point then, was Mr. Duckett refusing to
comply with your instructions?
A. Yes sir.
PLB NO. 2529 AWARD NO. 25 (page 3)
CASE NO. 34
Q. What did you do then?
A. I asked Mr. Duckett to go ahead and go down there
and straighten the plates, and he still refused.
I asked him several times to go on ahead and straight
en the plates, that I didn't need him behind the ma
chines and he refused, and finally he said fuck you,
I'm not going down there. I'm going to stay behind
the machines, and I said what did you say. He said
fuck you. I'm going to stay right here..." (Tr.,
pp. 4-5).
Section Laborer W. D. Devoss answered to questions of
the Hearing officer as follows:
Q. Would you please tell us what you heard and what
you observed?
A. Mr. Moss told Mr. Duckett after he'd come back from
straightening plates in between 2 spikers to go back
up front and straighten plates, that one could handle
' it, and he said no at first. Then he walked off,
walked up there about a pole length away. Then he
came back and he said no, that I was gonna stay here
and straighten plates.
Q. Excuse me. By he, who do you mean?
A. Mr. Duckett. And he said no, Mr. Duckett said no,
I'm gonna stay here and straighten plates, and they got
kind of in an argument, and Mr. Duckett told Mr. Moss,
he said fuck you, I'm gonna stay here and straighten
plates." (Tr., p. 9).
Claimant testified, answering questions of the Hearing
officer, in part as follows:
Q. Did Mr. Moss instruct you to go back out in front of
the crane?
A.
Right. He
instructed me to go back towards it. I
said Wayne, the man is caught up. He said well, I
don't care. Just go on back up there.
Q. Did you do so?
A. No, see, that's when I -start asking him Wayne, why
you take my job when this man's coming up here extra,
and I said why you don't send him up front, I said
cause this is my job what I've been doing all day,
which is what everybody had been doing. They'd get
a job, they does it all day, and this was when we was
going through the motion he saying well, you don't
like it, go home, go home, go home, and he was belching
me with his stomache telling me to get off the track."
(Tr., p. 13).
PLB NO. 2529 AWARD NO. 25 (page 4)
CASE N0. 34
The evidence is clear beyond doubt that Claimant
refused to comply with a reasonable order of his Foreman.
Claimant felt that his seniority was such that the Foreman
should have ordered the extra man to go forward to do the
more strenuous work, and he also may have felt that it really
was not necessary for him to go up front considering the amount
of work at the time. Apparently, Claimant resented his Foreman's order, regarding it as unreasonable and as unfair.
The fact remains, however, that Claimant flat refused
to follow instructions. By his refusal to follow instructions
in this incident, he violated the Burlington Northern Safety
Rules 563, 564, and 576. 'Employees generally understand the
principle: First, obey; Second, grieve. If Claimant felt that
he had a fair complaint against his Foreman, he should first
have obeyed instructions, and secondly, he could have sought
redress through the grievance machinery.
There are not sufficient mitigating circumstances
presented on this record to support a conclusion other than the
inescapable one that Claimant.'s conduct amounts to insubordination. Claimant's employment record shows two previous dismissals
for similar violations. In the circumstances of this case, the
Carrier's discipline was not excessive.
A W A R D
1. The Carrier is not in violation of the Agreement.
' 2. The claim of Trackman
R.
J. Duckett is denied.
OSEPH LA ARK CHAIRMAN AND NEUTRAL MEMBER
C. F. FOOSE, EMPLOYE MEMBER H. H. PAYNE, CARRIER MEMBER
DATED: 17 / U
.,