NATIONAL MEDIATION BOARD, ADMINISTRATOR SPECIAL BOARD OF ADJUSTMENT NO. 957
In the Matter of the Arbitration -between-

 Brotherhood of Maintenance of OPINION AND AWARD
 Way Employes Award No. 278
 -and
 Southeastern Pennsylvania
 Transportation Authority
 --------------------------------

 In accordance with the agreement in effect between the above-named parties, the Undersigned was designated as the Chairman and Neutral Member of the SEPTA-BMWE Special Board of Adjustment (the Board) to hear and decide a dispute concerning the following Claim:











A hearing was held at the offices of the Employer in Philadelphia, Pennsylvania on February 12, 2009 at which time the Claimant and the representatives of the parties appeared. All concerned were afforded a full opportunity to offer evidence and argument and to examine and cross-examine witnesses consistent with the relevant procedures that exist between the parties. The Arbitrator's Oath was waived. The Board met in Executive Session after the hearing.



The Claimant worked for the Employer as a Mechanic on a tie production gang. The record indicates that at approximately 12:30 a.m. on August 1, 2008 an incident occurred between Supervisor/Track Foreman Reginald B. Woods, Track Foreman of the Regional Rail Production Gang John R. Pivariunas, and the Claimant. The incident involved a verbal exchange about the work assignment for the Claimant and also an unsuccessful effort by the Track Foremen to have the Claimant attend a job briefing.
 The Employer found that the Grievant had engaged in insubordination by failing to comply with three direct orders to speak with the Track Foreman about the work assignment and the Claimant's failure to attend the job briefing. The Employer subsequently terminated the Grievant.
 The Union filed a grievance concerning the termination. The Employer denied the grievance. The parties failed to resolve the matter during the preliminary steps of the grievance procedure. The dispute proceeded to the Board for a final and binding determination.

NORAC OPERATING RULES

GENERAL RULES

(Northeast Operating Rules Advisory Committee)

Effective April 6, 2008

Reporting for Duty


4. Job Briefings
 when reporting for duty, employees whose duties require
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                                                  SBA No. 957

                                                  Award No. 278


      coordination with other employees must hold a job briefing to review operational and safety conditions. If these conditions change, employees must hold an additional job briefing to discuss the new conditions.


      Job briefings should be conducted face to face. When not practical or possible to do so, radio or telephone communication will be adequate.


RAILROAD OPERATIONS DIVISION

RULES MANUAL

Authority Standard Rules


ASR-3 Knowledge of Rules and Special
 Instructions/Qualification

 B. Authority Discipline

 Failure to comply with the rules, practices, procedures,
 policies, or other directives that affect the employee's duties
 may result in disciplinary action, up to and including discharge
 as outlined in the applicable labor agreement or in the Authority
 policy manual.
 ASR-7 Personal Conduct

 Employees are expected at all times to conduct themselves in a manner which does not jeopardize or otherwise disgrace the public image of the Authority. Any actions which are deemed to be insubordinate, uncivil, immoral, indecent, socially disapproved, or otherwise abusive to other employees, passengers or the general public will be considered as conduct unbecoming of an Authority employee, and may subject the offending employee to disciplinary action up to and including discharge and other civil penalties depending upon the severity of the offense. CONTENTIONS OF THE EMPLOYER The Carrier asserts that just cause existed to terminate the Claimant. The Carrier maintains that the Claimant refused three direct orders to discuss the work assignment of the Claimant and to attend a federally-mandated job briefing at the start of the shift. It is the position of the Carrier that the Claimant's behavior constituted insubordination that warranted the summary

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                                                  SBA No. 957

Award No. 278 dismissal of the Claimant. The Carrier observes that no basis exists for leniency because the Claimant recently had received a prior unpaid disciplinary suspension for sleeping while on duty. The Carrier urges that the grievance be denied. CONTENTIONS OF THE UNION
 The Union considers the Employer's decision to terminate the Claimant to be arbitrary, capricious, and unwarranted. The Union stresses that the purpose of discipline is to rehabilitate, correct, and guide employees rather than to punish employees. The Union declares that the Employer should have followed progressive discipline instead of terminating the Claimant.
 The Union emphasizes that the Employer failed to prove that the Claimant had violated any applicable rules during the verbal exchange that had occurred between two foremen and the Claimant. The Union underscores that the Employer has the burden of proof in the present disciplinary matter. As a consequence, the Union requests that the grievance be granted.

            FINDINGS OF FACT AND OPINION OF THE BOARD

This case involves discipline. The parties stipulated that the Employer has the burden to prove its case by clear and convincing evidence.
 A careful review of the record and of the credible testimony of Track Foremen Woods and Pivariunas indicates that the Claimant failed to respond without justification in an appropriate manner on repeated occasions on August 1, 2008 to the Track Foremen about job-related matters. Consistent with Authority Standard

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` SBA No. 957
 Award No. 278
 Rules 3(B) and 7 cited above, the Track Foremen had a clear right to discuss the Claimant's work assignment with the Claimant and had a further clear right to insist that the Claimant attend a routine job briefing to discuss relevant safety issues. For whatever reason or reasons, however, the Claimant decided to engage in self-help by refusing even to talk in a proper manner with the Track Foremen as directed. The record omits any justification whatsoever for the Claimant's inexcusable, misguided, and rude behavior. If the Claimant had a valid objection to a prior directive to change a tamper machine, the Claimant should have obeyed first and grieved later. The record omits any hint, indication, or suggestion that the prior direction to the Claimant to change the tamper machine or the subsequent decision by the Track Foremen to rescind the order to change the tamper machine constituted unsafe or illegal acts. In fact, the Claimant's perplexing, unexplained, and unilateral decision to disregard the effort of the Track Foremen to have the Claimant attend a NORAC-mandated job briefing to discuss safety issues exacerbated the Claimant's ongoing defiance of appropriate supervisory authority. In the absence of any valid basis for the Claimant to have repeatedly disregarded the clear and unequivocal directives of the Track Foremen, the record proves by clear and convincing evidence that the Claimant had engaged in repeated acts of insubordination that provided a basis for summary dismissal.

      Under these highly unusual circumstances, the record omits


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SBA No. 957
 Award No. 278

 any basis to absolve, excuse, or relieve the Claimant from the obligation that existed for him to have complied with the clear, direct, and reasonable efforts of the Track Foremen to convey instructions about the Claimant's work assignment and about the mandated job briefing. In the context of the pertinent provisions referenced above and the further undisputed evidence that the Claimant had received an unpaid disciplinary suspension for sleeping while on duty on two occasions on April 8, 2008, no basis exists for the Special Board of Adjustment to change, disturb, or modify the determination of the Employer to have terminated the Claimant.
      The Award shall indicate that the Claim is denied.

Accordingly, the Undersigned, duly designated as the Chairman and Neutral Member of the SEPTA-BMWE Special Board of Adjustment and having heard the proofs and allegations of the above-named parties, makes the following AWARD:

          The Claim is denied in accordance with the Opinion of the Board.


William L. Capil( Employee Mem Concurring/ isse ting DATED:

 Robert L. D~
 Chairman and Neutral Member

 6

 C r sheridan

 ar;leyr member
 curring/Dissenting