AWARDS 85 - INSUBORDINATION

Second Division Award No. 12089 (Zusman)

"The facts at bar support the Carrier's finding of guilt. A review of the Investigation held on December 2, 1988, finds that the Assistant Car Foreman did order the Claimant to work overtime to assure the late arrival was clean. It was a clearly understood direct order. The testimony of the Claimant is that he said no. By his own admission, the Claimant refused. The Claimant's dismissal for insubordination was supported by the evidence of record.

"The Claimant has provided additional argument and evidence which was not raised during the Investigation. The Claimant has further argued that some of the testimony presented was false. Such argument comes too late for proper consideration, but even if it were accurate, it would not change the Board's position. Insubordination often results in permanent dismissal. The Claimant must obey the direct order and grieve later if he feels a problem exists. He did not do so in the instant case. The fact that junior employees were available is not relevant when considered in the context of the refusal to comply with a direct order.

"Claimant was guilty of insubordination. Dismissal was warranted. Reinstatement made on a leniency basis with the right to progress this Claim for time lost. There is nothing in the record that shows discriminatory action toward the Claimant. There is no evidence of mitigating factors in the admitted insubordination. After full consideration of all facts, the Board denies the Claim."

Second Division Award No. 12105 (McAlpin)

"Upon complete review of the evidence, the Board finds that the Investigation conducted by the Carrier was fair and impartial as required by the Rule. The Carrier was within its rights to withhold the Claimant from service and a reading of the transcript showed that the Organization and the Claimant were able to offer substantial and effective arguments on behalf of the Claimant. With respect to the Carrier's inability to prove that the Claimant was familiar with the Norak Operating Rules, normally this would be a serious charge on behalf of the Organization. However, the Claimant was charged with insubordination. This is well known not only throughout the railroad industry but all industry. The principle being that you follow the lawful instructions of your Supervisor unless there is a clear safety issue involved. If employees are unhappy with their treatment, there is a grievance procedure in place to adjudicate those claims.

"Clearly, if the Carrier has proven insubordination, and in fact the Claimant has admitted to insubordinate activity, a suspension of 18 days is appropriate even given the 11 years of service of the Claimant and his unblemished disciplinary record. It may be that the Claimant perceived that the Supervisor was acting in an irrational and arbitrary and capricious manner toward him, and he may have had compelling personal family business. However, workplaces are not debating societies. The Claimant must follow the instructions of his Supervisor unless there is a safety issue involved. If there was a question regarding the overtime pay that could have been resolved at a later date. Therefore, the Board finds that the Carrier has proven the violation in this case. The penalty is appropriate under the circumstances and, therefore, the Claim will be denied."

Second Division Award No. 12107 (McAlpin)

"Upon complete review of the evidence, the Board finds that this is not a case of double jeopardy. The Claimant was not disciplined previous to the Investigation and, in fact, was charged in that Investigation with two violations of Carrier Rules. Particularly, the Claimant was placed on notice in Second Division Award 10812 that the Carrier has the right to have its accident investigation forms completed properly. It is clear to this Board that the Claimant refused a reasonable instruction by her Supervisor and engaged in self help activity, which amounts to insubordination. There is no excuse for the Claimant not to at least answer questions regarding her accident so that the Carrier could make an appropriate record of the incident. Bearing in mind the proven Rules violations by this Claimant and her admittedly poor prior record, the Board finds that the dismissal of the Claimant is appropriate and, therefore, the claim will be denied."

Second Division Award No. 12163 (Duffy)

"Claimant was charged with insubordination for refusing to follow instructions to report to the office of the Plant Manager on March 7, 1990. Claimant had last reported for duty on February 6, 1990. After a Hearing in absentia on April 11, 1990, Claimant was found guilty as charged and assessed the penalty of dismissal.

"After reviewing the record, the Board is satisfied that there is substantive evidence that Claimant was guilty as charged. Failure to follow proper orders is a most serious matter and may properly lead to dismissal. Although this Board has on many occasions held that it does not favor Hearings held in absentia, Claimant was properly notified of the Hearing and did not appear by his own choice. We therefore find no basis for disturbing the Carrier's decision in this matter."

First Division Award No. 24105 (Fletcher)

"Review of the record develops that no procedural defects exist so as to flaw the Investigation. Moreover, ample evidence is present demonstrating that Claimant flatly refused to remain available and operate in aggregate service even though he had 4 hours and 45 minutes left to remain legal under the Hours of Service Act. Claimant left the property and went home, while the remainder of the Crew stayed on duty. The trip that Claimant refused was delayed over four hours awaiting an Engineer. Claimant's excuse that he was ill was only advanced well after he was suspended from service and is not persuasive. Accordingly no other conclusion can be reached except that Claimant's conduct was insubordinate."

Third Division Award No. 29077 (Wesman)

"It is evident from the record before us that Claimant's conduct went far beyond simple insubordination. He was clearly also abusive and threatening to his supervisor, who was issuing a reasonable directive. In light of the above, and in view of the Claimant's past discipline record, we see no reason to overturn Carrier's assessed discipline."

Third Division Award No. 29241 (Fredenberger)

"The Carrier's Vice President and General Manager also testified at the Investigation. He recounted previous incidents involving Claimant similar the one at issue in this case. It is a fair characterization of that individual's testimony that he had warned Claimant not to come into the freight office before the starting time of his position and not to disrupt the work of employees in that office. Claimant's conduct on June 2, 1988, was in direct violation of that order and constituted insubordination. We also believe that Claimant's comments directed toward the freight office Supervisor constituted insubordination. Accordingly, we must conclude that the record in this case substantiates the charge of insubordination.

"We cannot agree with the Organization that the discipline assessed was harsh or excessive. Even though Claimant has many years seniority and worked in the freight office without incident for many years, the fact remains that Claimant had been disruptive of the work force in the freight office. A warning to discontinue such activity apparently had no effect. In our view, a two-week suspension to impress upon Claimant the necessity to correct his errant behavior was not inappropriate."

First Division Award No. 24418 (Eischen)

"With regard to the quantum of discipline assessed, we cannot find thirty days for willful insubordination excessive or unreasonable. Claimant must have been aware that any additional discipline would 'trigger' the prior deferred suspension. Finally, we find no support for allegations that Claimant was not afforded a fair and impartial hearing. So far as this record shows, Claimant did receive a full and fair Investigation at which Carrier proved that Claimant was knowingly and willfully insubordinate. Accordingly, this claim is denied."

Second Division Award No. 12834 (Hicks)

"Claimant was served a timely notice of charges which read, in part;

' . . .Any act of insubordination . . .will not be condoned and is sufficient cause for dismissal..

'To be specific, these charges stem from the June 26, 1992 incident in which you refused a direct order from your Assistant Manager . . .'

"The hearing was held and claimant was found guilty of committing an insubordinate act. He was assessed 30 days actual suspension from service based upon the act itself and his past record. See Awards 26 and 42 of PLB No. 4623.)

"The old but still valid adage of 'obey now, grieve later' is most fitting in this dispute.

"The discipline must stand despite the valiant arguments of the Organization in an all out effort to nullify or at least mitigate the discipline. The Organization contended Carrier violated Public Law 102-306, and various rules of the agreement. These arguments must be rejected. The hearing was to determine if Claimant refused an order from his Supervisor to work. Clearly, he did."

Third Division Award No. 31774 (Malin)

"On August 30, 1996, Claimant Ellis, in consideration of $125,000.00, signed a general release which expressly included "any labor claim he may have arising out of his dismissal…" This release rendered Claimant Ellis' claims moot and deprived this Board of jurisdiction to consider them. Accordingly, Claimant Ellis' claims must be dismissed. See, e.g., Third Division Awards 26345, 23932."

First Division Award No. 24114 (Fletcher)

"For a variety of reasons the discipline assessed in this matter will not be allowed to stand. Mainly, it is questionable in this record, that the request of the Manager, conveyed through a contract limo driver, was sufficiently articulated or adequately delivered by the selected `agent', so as to be a command, which would clearly be understood to constitute an act of insubordination if not followed irrespective of the expiration of the Claimant's legal duty time.

"In the circumstances present, a lengthy Investigation had occurred at the site of the derailment, the crew had been released by the Manager, the reason for `further discussion' was not stated, the time the `further discussion' would probably occur was indefinite, the lawful time on duty had expired, etc. Thus, critical elements to support a charge of insubordination are missing. The discipline will not be allowed to stand. The Claim will be sustained as presented."