SPECIAL BOARD OF ADJUSTMENT NO. 957
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

STATEMENT OF CLAIM:

 AWARD NO. 23

 Claim of the Brotherhood (BMWE-87-7-F12) that:

 The discipline assessed Track General Helper W. Crippen was without just and sufficient cause in an arbitrary and capricious manner.

 REMEDY:

 Claimant, W. Crippen, shall be compensated for all lost wages, including overtime, on account of this discipline, and his record shall be expunged of any reference to this incident.

 OPINION OF THE BOARD

Claimant, W. Crippen, was ultimately given a three day suspension by the Authority for alleged refusal/failure to perform assigned work.

The facts in this matter are as follows. On June 9, 1987, the Claimant was working under the supervision of Fred Brinkley. Brinkley instructed the Claimant to first assist in moving, then assist in operating, the "nutter machine", which is a machine designed to tighten or loosen nuts. According to Brinkley, the Claimant refused to either assist moving or operating the


machine. Brinkley therefore told the Claimant that he would
 assess him discipline for not following orders.

The Authority originally issued the Claimant a five day suspension. The Organization grieved the matter, and during the course of the grievance procedure the Authority reduced the discipline to a three day suspension. The Organization continued to assert that no discipline was appropriate, and placed the matter before this Board.

The Authority maintains that the Claimant was properly disciplined for his failure to perform the assignment of moving and operating the nutter machine. According to the Authority, the Claimant was fully qualified to perform these tasks.

The organization contends that any consideration of the
 Claimant's alleged failure to move the nutter machine is
 improper, as at no time prior to the hearing before this Board
 was the Claimant or organization informed that the charge
 involved movement of the~skachine. Concerning operation of the
 nutter machine, the organization contends that the Authority has
 not met its burden of showing that the Claimant was qualified to
 perform work on the machine, as required by Work Rule 35 and
 Section 304 of the Collective Bargaining Agreement, which
 provides that employees must pass designated qualifications in
 the form of written and/or performance tests prior to performing
 the duties of a specific position. Finally, the Organization
 asserts that the Carrier has failed to prove that the Claimant
 was guilty of any misconduct on June 9, 1987, but was instead
 2


 disciplined for alleged past incidents, as acknowledged by the'
 Authority during the grievance procedure.
 Work rules cited by the parties include:
 35. Vehicle Operation Restrictions






,the Claimant's alleged failure to move the nutter machine is
 improper, as that allegation was not made explicit in any of the
 documentation concerning this matter that was developed during
 the grievance procedure. The Board has further concluded,
 however, that considering alone the Claimant's failure to
 operate the nutter machine when requested, the evidence
 establishes that a three day suspension was warranted. Brinkley
 credibly testified that he demonstrated to the Claimant how to
 operate the machine. There is no evidence in the record that any
 further instruction was necessary in order to qualify the
 Claimant for operation of this machine. Moreover, the
 uncontradicted testimony of Brinkley was that a day or two prior
 to the date now in question, the Claimant had run the nutter
 machine and that on June 9 the Claimant said he would run the
 machine if asked to do so by the other employee on the machine.
 3

                                            gs~-a3


In these circumstances, it appears that it was the Claimant's lack of desire to comply with an order rather than any lack of qualification which motivated him to refuse to operate the nutter machine as requested. In light of the Claimant's attitude, and his prior work record, which contains a number of incidents of discipline, the Organization has done well in having the Claimant's suspension reduced from five to three days.


AWARD
      Claim denied.


. B. BIRNBRAUER ~~* W. E. LA RUE
 Authority Member organization Member

                i'

                SCOTT E. BUCHHEIT

                Neutral Member


4