STATEMENT OF CLAIM: “Claim of the System Committee of the Brotherhood that:

The discipline (dismissal) imposed upon Mr. S. Griffith for an alleged violation of U.S.O.R. Operating Rules: General Rule B. Reporting and Complying with Instructions and U.S.O.R. Operating Rules: General Rule H. Furnishing Information and Conduct on August 19, 2019 was arbitrary, excessive and in violation of the Agreement (System File 19 09 12 (044)/IC-BMWED-2019-00052 ICE).
As a consequence of the violation referred to in Part 1 above, Claimant

S. Griffith shall have his record cleared of the charges leveled against him and shall be compensated for all wage loss suffered.”

FINDINGS:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934. Public Law Board 6043 has jurisdiction over the parties and the dispute involved herein.

At the time of the incident herein, Claimant was working as a trackman in the Carrier’s Maintenance of Way department. On August 19, 2019, Claimant reported approximately five minutes late for service. The Company manager directed him to report his lateness to the Attendance Management Center (AMC) for documentation of the incident, which Claimant did not do. According to Claimant, he has never notified the AMC to report being tardy; he only calls them if he will be absent.

According to the manager, Claimant became argumentative and quarrelsome. Claimant testified that the manager told him to go home and not work if he didn’t call the AMC. Claimant then left the Carrier’s property and did not perform service on that day.

On August 22, 2019, Claimant was given notice of an investigation in connection with the following charge:

The investigation is being held to develop the facts and to determine your responsibility, if any, in connection with an incident that occurred at approximately 0720 hours, August 19, 2019 at or near Jackson, MS, in which you allegedly arrived late and/or failed to follow a directive and/or being insubordinate, argumentative and using foul language, and whether you violated any Company rules, regulation s and/ or policies in connection with the incident.

After a formal investigation on August 23, 2019, Claimant was found in violation of U.S.O.R Operating Rules: General Rule B. Reporting and Complying with Instructions and U.S.O.R. Operating Rules: General Rule H. Furnishing Information and Conduct and was dismissed from the Carrier’s service.

The Carrier contends that it has produced substantial evidence showing that Claimant was in violation of its rules when he arrived late for service, failed to follow a directive, was insubordinate and argumentative, and used foul language. The Carrier contends that if Claimant thought the manager was wrongly asking him to call the AMC, his remedy was to obey and file a grievance.

The Carrier contends that Claimant received a fair and impartial hearing.

The Carrier contends that Claimant’s refusal to follow the manager’s directive constituted insubordinate behavior, which is listed as a Level 4 Rule Violation which is serious enough to warrant immediate termination.

The Organization contends that Claimant was honest and forthright throughout the investigation and admitted that he was five minutes late for service. It also points out that he conceded that he did not call the AMC when directed to do so but explained that he did not have a cell phone with him. Further, the Organization contends that it was the practice on the property to inform the foreman when reporting late for duty. The Organization points out that when Claimant went home, he was complying with the manager’s directive.

The Organization contends that the discipline imposed was arbitrary and unwarranted. Claimant had 17 years of unblemished service for the Carrier and was entitled to the benefit of progressive discipline. The Organization contends that the Carrier’s discipline policy provides that the rule violation is serious enough to result in termination but does not make the penalty automatic. The Organization contends that because Claimant had no prior instances of discipline, the penalty was harsh and excessive.

The Board has carefully reviewed the record in this matter and has determined that the Carrier has not shown that Claimant’s conduct was insubordinate to a level which justified his dismissal in light of his 17 years of unblemished service. The Organization has demonstrated that there were significant mitigating circumstances that this Board believes

should be considered. Based upon the unique circumstances of this case and without precedent for any future similar claims, this Claimant is returned to duty without back payment, but with all other rights and privileges intact.

AWARD

Claim sustained in accordance with the Findings.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 60 days following the postmark date the Award is transmitted to the parties.

Kathryn A. VanDagens, Neutral Member

Ross Glorioso, Organization Member John Ingoldsby, Carrier Member Dated: August 12, 2021