Urotherhoo<l of Maintenance of Way Employl'S )
Dh·ision - IBT Rail Confcrcne<.· )
)
And )
)
(Former Soutlu·m Railway Company) )
Case No. 252 Award No. 252
S'J'AT E JE . 'f OF Cl . A i l:
Richard K. Hanft, Chairman and Neutral l\lemher
D. tvl. Pascarella, Employee Member
L Kerby, Carrier Member
"Claim of th<.· Srstcm Committl·<.· of till' Brotlu·rhoo<l that:
·111e Carrids discipline !approximately fifty (50) <lay actual suspensionI of Mr.
R. Dalton, issue by letter dated June 3, 2015, in connection with his alleged failure to follow instructions, in that at approximately 7:20 ;\. M. on W<.·dnesday, April 15, 2015 he was instructed by his supcr\'isor and his foreman to opl·ratl· tlw Gluc Machine and refused to Jo so was in violation of the System Discipline Agreement (Carrier's File MW-ATLi\-15-18-S(;-21:H SOll).
2. As :1 consl'l\Uencc of the violation refortl·<l to in Part I above, Claimimt R. Dalton shall ha\'e his suspension set aside with all notations thereof removed from :ill Carrier records and hl· shall also b<.· restored all financi:al and benefit losses, such as ,·acation and healrh insurance hl•nefits (including coverage under the railroad industry national plan) occasioned as a result of the violation, including: (1) traight tim<.· for <.·ach regular work Jar lost anu holiday pay for l':tch holiday lost, to be paid at the rate of the position assigned to Claimant at the time of suspl·nsio11 from sl·rvice (this amount is not reduced by l·aming11 from altem:1tc emplopnent obtained by (]aimant while wrongfully suspended); (2) any hrcneral lump-sum payment or retroactive general wage increase provided in any applicable agreement that became effectivl· whill' Claimant was out of service; (J) o\'ertime pay for lost m·ertime opportunities based on overtime for any position Claimant could have held durin the time Claimant was i;uspend<.·d from service or on overtime paid to any junior cmployl' for work Claimant could ha,·e hid on and performed had Claimant not h<.·en suspended from ser\'icl·; and (4) 111..·alth, dental and vision care
Special Board of Adjustment No. 1049
,\ward No. 252
insurance premiums, deductibles and co-pays that he woukl not h:l\'e paid had he not b<:en unjustly suspemled."
FINDIN< ;s:
Special Board of Adjustment Hl49. upon the whole record and all of the evidence, finds and holds that Employee and Carril·r afl· employee and carrier within tlw mcanin of the Railway 1..abor Act, as amended; and, that tlw Board has jurisdiction over the <lisputl' herdn; and, that the parties to the dispute Wl're 1,11ven due notice of the hearing thereon and did participate therein.
'I'his Award is based on the facts and circumstances of this particular case and shall not serve as a prl•cedent in any other cases.
After thoroughly reviewing and considering the record and the parties' presentations, the Board finds that the claim should be disposed of as follows:
The record reflects that Claimant was removed from sen·ice on April 15, 2015 and advised to attl·nd a formal investigation on April 30, 2015 . That lnvesti1-,ration was postponed and evennmlly hc!J on !\Jay 15, 2015 . The: Claimant was charged wit h: "Failure to follow instructions in that on April 15, 2015 at approximately 7:20 At-.J, you were instructed by your supervisor and your foreman to operate the glue machine and you refused to do so.
(:laimant, the record shmvs, was working as a 'I'rack I .,.borer on ( jang R-2 on April t 5, 2015. After the morning safety meeting and stretching exercises, the gang turned out and bq,ran fueling the elJuipment to pull it out of the hole. Claimant testified that he and other trackmen were assisting with the fueling.
One of the Machine Operators working with Claimant fueling the e<1uipment related that other employees Wl'rl' teasing C:laimant that he should be preparing the glue machine rather than fueling the equipment, as lw was goin to be workin with it later. 'l11c machine operator who usually operates the glue machine was temporarily working in another capacity to cm·cr for an employee who was off. ·111at saOll' co-worker testified at the investigation that Claimant stated that he was not j..,•oin to work with the glue machine for only two days because it would ruin his clothes and he didn't think that he would get machine operator's pay for doing it. ·n1at employee also rclatl·d that Claimant told hint that he was going to use safety as an excuse to get our of working with the machine.
Claimant's foreman testified that he saw Claimant aml told him that they needed him to gd with another employee, a machi1u· operator, on the glue machine. He related that Clamant stated that he wasn't oing to run it bt.-cauSl' he didn't feel safe.
SpL-cial Hoard of Adjm1ttncllt No. 1049
Award No. 252
'lbc forc:man recalled that he told Claimant a second time to go to the glue machine and again Claimant statc.'d that he wasn't going to run it because he didn't fed safe and added that he was tired of getting screwed out of his pay.
'111e foreman. the record shows, went to the Rail Supervisor and reported Claimant's reluctance to work with the glue machine. 'l11e Rail Supervisor testified that he went to the Claimant and asked him why he did not want tu work with the glue machine and he replie<l that he didn't feel safe to run it and that he might not know what ,·alvc to rurn. The: Rail Super.·isor recalled that he explained that Claimant's only function would be to pull the tri cr on the wand to release the glue and that Claimant then asked if he ,vas going to J.,l'Ct paid to run the machine. 'lbe Rail Supervisor testifie<l thnt he then kft the Claimant and callee.I the Ceneral Di,·ision Engineer and reported what had just transpired and that the (;eneral Division Engineer called him back shortly after and instn1cted the Rail Super.•isor to take Claimant out of sL·r.· ice.
'lbe Organi;.,;ation argues th11t Claimant's declination to work with thl· glue machine was based on his legitimate and earnest safety concc:ms which immunized him from being guilty of failing to follow instructions. We fin<l the Claimant's safety conccnls to be disingenuous. Rather it appears, as supported by the testimony of a cu-worker, Claimant's foreman and the Rail Super.•isor, that Claimant was more concerned with extorting the Carrier for machine operator's pay than any legitimate safety co nce rn.
:\ccordingly, Wl' conclude that the Carrier prc>\'cd the violation CL'limant was charged with by subst:mtial evidence. Hased on thl' record before us, we cannot 11ay that a fifty (50) day suspcnsi011 was arbitrary, capricious, unjust or unsupported by the record e,·idence. Hence, we can find no basis to sustain thl· claim.
'J11e Claim is dcnie<l.
L."
Award:
.,e
rt'Xl•
.; ::: 1-1anft. Chairman
D. l\·I. Pascarella. Employee Member D. L. KL·rby, Carrier Member
Datc..J at ChicaAo, Illinois, January 18.2018