BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 924
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
a
UNION PACIFIC RAILROAD COMPANY
(FORMER T
COMPANY)
s. 263
Award o.
STATEMENT CLAIM: "Claim of the System Committee of the
Brotherhood that: .
1. The dismissal (Level ) assesse Trackman S. A. Clark for his alleged
insubordination and driving a company vehicle the proper license
on September 25; 2003 was without just d sufficient cause, excessiv
. and undue punishment and disparate treatment (System File
988/1388459 ).
2. Trackinan S.A. Clark shall now be reinstated to service -with. seniority an
all other rights unimpaired d compensate for all wage loss sufflered."
At the time of the events leading up to t 's claim, the Claimant was
assigned to work for the Carrier as a Trackman on Gang 3408.
y letter dated September 29, 2003, the Climnt was notified to a e for
a formal investigation and hearing on. charges that the Claimant allegedly was
insubordinate when he left Carrier property prior to quitting time and without
roper authority, an that the Claimant allegedly Carrier vehicle without a
vali o erator's license. After a postponement, the hearing was conducted -October 1, 2003. y letter ate October
30,
200 , tClaimant was notifi
°G
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that as a result of the hearing, he had been found guilty as charged, and he was
being assessed Level 5 discipline, dismissal from the Carrier's service. The
Organization filed a claim. challenging the Carrier's decision, and the Carrier
denied the clairn.
The Carrier initially contends that the Claimant was afforded all elements
of due process in accordance with the Agreement. The Claimant received
adequate notice of his investigation, was allowed ample representation, and was
able to present his own witnesses, as well as cross-examine all of the Cer's
witnesses who were present at the investigation. The Carrier points out that the
Organization failed to make any procedural objections throughout the on-property
handling of this case, which operates as a valid waiver of any such challenge. The
Carrier therefore asserts that this claim
coot be
granted on any procedural basis.
The Carrier then points out that the
Organization
chose not to challenge the
Carrier's findings that the Claimant violated Rules 1.13 and 74.2. n fact, the
Claimant admitted to violating these Rule s when e admitted that he operated a
Carrier vehicle on Carrier property without a valid operator's license. The Carrier
insists that the instant claim must fail because the Claimant violated Rules 1.6(3)
and 1.15 when he stranded his gang on the property and left work early, thereby .
flouting instructions from his supervisor..
The Carrier maintains that every independent witness at the investigation
testified that the Claimant was instructed to take e ° er truck to te rail
crossin as part of his duties on the day iuestio. The Claimant also was
i
SBA
A wd
Instructed to bring the truck back to the job site because it was his gang's only
source of transportation. The Carrier points out that the Claimant nevertheless
made a personal decision to leave work early, thereby abandoning his duties an
his colleagues without authority to do so. The Claimant's conduct amounted to
leaving his assignment without authority and was in direct opposition to his
supervisor's instructions.
The Carrier emphasizes that the Claimant admitted that he received d
understood his supervisor's instruction, and he knew that his g would be
stranded without the truck because it was their only means of transportation. The
Claimant further admitted that a did not re the truck, but instead decided to
leave work early because a assumed that it was time to go home. The Carrier
asserts that the Claimant's admissions demonstrate his, complete personal
responsibility for his actions. The Carrier further argues that a fact that the
Claimant
fade
these admissions in front f his Oran nizatipn representative raises
questions about the Organization's good faith in progressing the instant claim:
The Carrier also points
out
at these admissions satisfy the Carrier's obligation o
show substantial evidence. The Carrier insists that ere is no basis for the instant
claim to be sustained.
The Carrier goes on to contend that once an arbitral panel verifies that
substantial evidence supports a
finding
of guilty, the panel lacks authority to
overturn the level of discipline assessed, even if the discipline may seem harsh,
unless there is a sufficient demonstration that the discipline was arbitrary,
3
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capricious,
4r
an abuse of Carrier' discretion. The Carrier insists that the discipline
at issue was not arbitrary, capricious, or an abuse of Carrier discretion.. The
Carrier emphasizes that the Level 5 discipline assessed in the Grievant's case was
correct and in accordance with the Carrier's UPGRADE Policy. There is no
evidence of arbitrariness or capriciousness in connection with the assessment of
this discipline, so there is no reason for this discipline to be overturned.
The Carrier emphasizes that it can neither condone nor forgive the
Claimant's conduct. The Carrier argues that it does not need an individual who
mould treat his fellow employees in such a manner. The Carrier ultimately
contends that the instant claim should be denied in Its entirety.
The Organization contends that the transcript demonstrates that
there was some confusion as to what instructions were given
t4
the Claimant. The
testimony is inconclusive as to how the instructions were given, and this clouds
the issue of whether the Claimant's conduct was insubordinate or failure t
follow instructions. The Organization maintains that the Claimant's actions and
statements d4 not indicate a refusal to carpY out his supervisor's instructions.
The
Claimant also id not demons trate grass disrespect for his supervisor.
Organization asserts that the Claimant did not violate Rule .(3). T
Organization acknowledges at Rule 1.13 mare properly applies to this case
does Rule ., but the Organization asserts that t Claimant's failure t
comply with instructions was ue to °s misunderstanding of teins cti n.
The Or' 'zatn argues s that the Claimant did not display a refusal to carry out his
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instructions. The Claimant has acknowledged, however; that he violated Rules ,
74.2 and 1.15.
The Organization then emphasizes that Employee Van Cannon was given
the same instructions, failed to comply with the same instructions, and left work
without authority, yet he was not charged with violating any rules. The
Organization insists that this clearly is a case of discrimination. Given the fact
that this other employee was not charged at all and that the charge of
insubordination lodged against the Claimant was not proven, the Organization
maintains that the ultimate penalty of dismissal represents excessive and undue
puni slu-rent.
The Organization ultimately contends that the instant claim should be
sustained in its entirety.
This Board has reviewed the evidence and testimony in °s case, d we
find that there s sufficient evidence in the record to support the finding at the
Claimant was guilty of being insubordinate when he left the Carrier's property
prior to quitting time after a had been specifically instructed to report back to e
worksite. .
The Claimant's insubordinate actions in this case had the effect of stranding
his gang on the property because he was in control of their only means of leaving
the are. The Claimant admitted that he did not re with the truck, true his
gang, and left early on the date in question.
Once this Board has determined that there is sufficient evidence the
5
record to support the guilty finding, we next turn our attention to the type o
discipline imposed. This Board will not set aside a Carrier's imposition of
discipline unless we find its actions to have been unreasonable, arbitrary, or
.
capricious.
The Claimant in this case is guilty of very serious violations which included
failing to follow instructions and insubordination. Given the seriousness of those
violations, this Board cannot find that the Carrier acted unreasonably, arbitrarily,
or capriciously when it terminated the Claimant's employment. Therefore, the
claim will be denied.
AWARD:
The claim is denied.
O"NIZATION'1VI E-k k-1E R
DATED:.;
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