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^UBLTC DAN ^'nMD NO. 4979
BROT77RH?OD Or vATMlENANCE O=' WAY =pLOYES
and
NATIONAL RAILROAD PASSENGER CORPORATION
AWARD NO. 65
System Locket N0. BMWE-475D
Following the hearing, the Claimant was dismissed from service.
The Claimant. aMac:hine Operator "B'", was on duty with a track repair crew on March 25, 20^2. Other enrloyees in the crew were Machine Operators "B.°^ or "C°°. The Claimant was assigned to a 3ackhoe machine. At n e7rly point in the crew's work, the Claimant wa.s directed by the Fore^.n to leave his machine and assist other crew nembnrs in work on track ties and rail.
There are some inconsintenc ies =n witnesses' testimony during the ina.7st igative hearing. A full examination of the .record, however, clearly fiscloses :h--'t the Claimant was, at first, reluctant to join other crew members in track work. once he had done so, he questioned the Foreman .s to placement of a spike in a tie hich t"_e Claimant considered unsuitable. The Foreman test=fie? that, when he ?~recte? tile Claimant to secure the tie, ._._e Claimant failed t.7 do no a.^d "throw his too' down and walked off the job". The Claimant testified that he "dropped the spike in the tie". What is not '_n vwnston is that the Claimant left his assigned track location. Although he did not leave the general area, :?e. improperly abeentedd himself from his assigned work for a'_1
extended period in what may only be considered as defying the Foreman's authority.
The Supervi-^r of Track came to the work area and was apprised of the Claimant's conduct by the Foreman. When the Track Supervisor attempted to talk with the claimant and the Foreman, the record clearly shows that the Claimant was argumentative, loud, and uncooperative. The Claimant stated, according to the Supervisor, that he was ""go'_ng home". 7-cause the Supervisor wished to get
w'tten statements from employees concerning the incident, he properly insisted that the Claimant remain for this purpose.
Because of his u.^-uly con"uct, the Foreman determined that the Claimant would be replaced on the backhoe machine, presumably for the work at hand. T`:is, too, created further resistance and argument from the C7'_-_`.mant.
:eater, when the Super.visnr ^,etermined that the Claimant should 'De removed from service !pending a hearing), the Claimant refused to accept the written not.ce and used abusive language to the v·~ oervisor.
Testimony from a number of employees on the work crew did little o support or c~allenae the versions of the incident by the Foreman, Supervisor and the Clae-ant. The Board concludes that the Hearinz ^f f_=_cer properly accepted the accounts of the Foreman and Supervisor as to the Claimant's continuing unsatisfactory and unacceptable conduct throughout the entire incident. Even if he believed he was improperly assigned: to join in the track work, the
19 4,,8 go . 4a-)g AV-) D p o · CO SClaimant was or should have been ;cell aware of the consequences of c'_allencr__ng or resisting h_.s Fe:_-~nan's directions.
standing bv itself, the s_-^quence of events might well have warranted disci-ounarv action we=', short of dismissal. The Claimant, however, was previously disciplined for misconduct similar to that exhibited ?_n tie matter here under review. The Claimant had been dismissed from ssrvice (-~-=_th another employee) for °'discolarteous sand unpr'cfe:ss__Onal Conduct, including boisterous, intimidating, and threatening behavior". In Award Nos. 55 and 56 (May 11 , 2000) , the Board mode if__ed the dismissal to a six-month discipline-.ry suspe^sion. 7n doing so, the Board stated as follows:
The Claimant was either unwilling or unable to be guided by th_,s corrective warn__ng. AS a resale, there is no basis for the Board once again to sic-3ify the Carrier's disciplinary action.
:accusations were raise'' that the discipline was motivated by the C1 aimant's race and t.'.Za. t t.'ze Carrier's disciplinary actions are racially disparate. The 2^ard was nresented with no convincing evidence to support such .^ontentions.
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