BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 924
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
1. The dismissal of G. R. Larson for alleged
insubordination was without just and sufficient
cause (Organization File 8RP-5010D; Carrier File
2. Claimant G. R. Larson shall be allowed the
remedy prescribed in Rule 19(d).
FINDINGS:
Claimant G. R. Larson was employed by the Carrier as a
machine operator at Marinette, Wisconsin.
On May 11, 1989, the Carrier notified the Claimant to appear
for a formal investigation in connection with the following
charge:
Your responsibility for being insubordinate to a
company officer when you refused to take a
toxicology drug test when you were the operator of
the machine that struck an underground electrical
line in Stanton Street that caused severe
electrical outage at the Ansal Plant in Marinette,
Wisconsin on May 9, 1989.
The hearing took place on May 15, 1989. On May 23, 1989,
the Carrier dismissed the Claimant for insubordination. On June
6, 1989, the Organization appealed the Carrier's decision,
contending that the Carrier had no right to demand breath and
urine samples from the Claimant. Thereafter, the Carrier
reaffirmed its position on the basis that the Claimant was
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insubordinate when he refused to submit to a breath and urine
test on May 9, 1989. The Organization contends that the Carrier
should not have dismissed the Claimant for his refusing to submit
to testing because he had not been found guilty of causing the
electrical outage at Marinette, Wisconsin on May 9, 1989, and,
therefore, was not required to undergo the toxicology exam. The
parties being unable to resolve the issues, this matter came
before this Board.
This Board has reviewed the evidence and testimony in this
case, and we find that there is sufficient evidence in the record
to support the finding that the Claimant was guilty of
insubordination when he refused to take the drug test that he was
ordered to take by-his supervisor.
The organization argues that there was no probable cause for
the supervisor to request that the Claimant take the test.
However, the record reveals that the Claimant was operating a
front-end loader and that while operating that loader, he struck
an electrical cable, causing a power outage. Although the
Claimant states that he was only following orders, the rules
require that individuals involved in accidents which cause injury
or damage must subject themselves to blood and alcohol tests.
The supervisor properly ordered the Claimant to take the test,
and he refused.
Once this Board has determined that there is sufficient
evidence to support the guilty finding, we next turn our
attention to the type of discipline imposed. This Board will not
set aside a Carrier's imposition of discipline unless we find its
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action to have been unreasonable, arbitrary, or capricious.
In the case at hand, the Claimant was guilty of
insubordination. Although insubordination is often a dismissible
offense even on the first occasion, this Board notes that this
Claimant has been employed by this Carrier since 1978 and has
received no previous discipline. Given that unblemished record,
this Board finds that the action taken by the Carrier in
terminating his employment was unduly severe and unreasonable.
This Board therefore reduces the discipline to a lengthy
suspension, and we order that the Claimant be reinstated to his
employment but without back pay.
AWARD:
Claim sustained in part. The Claimant is to be reinstated
to employment but without back pay. The time off from work shall
be considered a le thy s pensionor his insubordinate action.
rrier Mem er
Da e:
PETE R. 4EYERS
Neutral ember
Organization Mem