SPECIAL BOARD OF ADJUSTMENT
PUBLIC LAW BOARD
NO.
3729
CONSOLIDATED RAIL CORPORATION
"CARRIER"
-and- * CASE
NO.
12
,r
BROTHERHOOD OF MAINTENANCE OF * AWARD NO. 11
WAY EMPLOYEES
"ORGANIZATION"
:r
STATEMENT OF CLAIM:
Claim of the Brotherhood (CR-1191-D) that:
1.The Carrier violated Rule 27 (b) of the current
Scheduled Agreement when placing Claimant Wayne
Edison, Trackman, out of service subsequent to
his hearing on September 25, 1984, and assessed
the Claimant 30 days suspension without just
and sufficient cause.
2.The Claimant shall be compensated for all lost
wages including overtime and his personal record
shall be expunged of any record on this discipline.
This case arose when the Carrier charged Wayne Edison,
hereinafter the Claimant, with insubordination. The specific
charge, contained in a notice dated August 10, 1984, was as follows:
Insubordination on July 30, 1984 and August 2,
1984 when you failed to report to the Conrail
Medical Department at 30th St. Station, Philadelphia, Pa. as ordered by V. L. Terziu, Division
Superintendent via certified mail dated July 13,
1984 and July 25, 1984.
The hearing was held on September 25, 1984. The Claimant
was present and represented by the Organization. By notice dated
PLB-3729 Award No. 11
October 5, 1984, the Carrier notified the Claimant that he had been
found guilty of the charge and assessed discipline of 30 days suspension. The above quoted claim was then filed on behalf of the
Claimant.
The Claimant was a trackman with six years service at the
time of the hearing. As a result of an injury the Claimant missed
work. The Carrier believed the Claimant had recovered sufficiently
to resume his normal duties and therefore notified him to report
for medical evaluation on July 20, 1984. The Claimant did not
report. The Carrier then sent the Claimant a second notice ordering
him to report for a physical examination on August 2, 1984. The
Claimant called the Carrier on August 2 and said he was not feeling
well enough to appear. The Carrier subsequently charged the Claimant
as previously quoted.
POSITION OF THE PARTIES:
It is the organization's position that the Claimant was not
insubordinate. Rather, he had medical problems on the days of both
scheduled appointments that legitimately prevented him from attending. On both occasions he called the Carrier in advance to say he
could not attend. In addition, the Carrier improperly placed the
Claimant out of service for a major offense.
The Carrier asserts that the record contains substantial,
credible evidence of the Claimant's guilt. On two occassions the
Claimant failed to appear as directed for a physical. The Carrier
maintains that it has no record that the Claimant contacted the
Carrier on July 20 and the call on August 2 should have been made
- 2 -
PLB-3729 Award No. 11
earlier. Furthermore, the Claimant did keep appointments with his
personal physician on both July 20 and August 2, thereby demonstrat
ing that he could have also reported for the Carrier physicals.
OPINION OF THE BOARD:
The Board has determined that the claim must be denied,
as the record supports a finding that the Claimant was insubordinate.
On two occassions he failed to report as ordered for 'a medical
examination in spite of his ability to attend physicals with his
own doctor. The Claimant also did not make timely requests to
reschedule the examinations.
The Board has further concluded that the Carrier did not
act arbitrarily by removing the Claimant from service for a major
offense. Accordingly, the claim shall be denied.
AWARD:
Claim denied.
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SCOTT E. BUCHHEIT
Neutral Member
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~~
ROBERT O'NEILL ~. P. CASSESE
Carrier Member rganization Member