CARRIER FILE NO. 1170135
ORGANIZATION FILE NO. D0707

PUBLIC LAW BOARD NO. 5912

PARTIES TO DISPUTE;

UNITED TRANSPORTATION UNION)
                           )
                        VS )         NMB CASE NO. 167
                           )         AWARD NO. 167
UNION PACIFIC RAILROAD CO. )

STATEMENT OF CLAIM;

Claim of Conductor P. D. Edwards for reinstatement to service with all rights unimpaired and removal of UPGRADE Level 5 from his personal record with pay for all time lost, including time spent attending the investigation, and payment for all wage equivalents to which entitled, with all insurance benefits and any monetary loss for such coverage while improperly disciplined.

FINDINGS AND OPINION

The Carrier and the Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act, as amended. This Board has jurisdiction of the dispute here involved.

The parties to this dispute were duly notified of hearing thereon.

Claimant involved in this dispute was summoned for formal investigation on a charge that he allegedly refused to follow instructions given him by MTO D. M. Smith on December 14, 1998. Following the investigation Carrier found claimant guilty of violation of Rule 1.6.3 (insubordination) and assessed Level 5 discipline (dismissal from service) under the UPGRADE Discipline Policy.

The Board would here note that at the time of this incident claimant had been in service for approximately 35 years.

The record before this Board is clear that claimant had been called to work at 1:00 AM for an assignment of the CTLEY-04. At approximately 5:00 AM claimant was instructed to dogcatch the CEYPA-04 on which the crew's time was expiring under the Hours of Service Law. Claimant did so and, after such train was in the terminal, claimant was then instructed to continue switching the CTLEY-04 in preparation for its departure--specifically he was instructed to pick up seven cars from Track 5 so as to fill the train to 107 cars.Award No. 167.  The record is also clear that claimant refused to make this switching movement, stating he did not have to do so under the "switching agreement" allegedly in effect. Even after he was cautioned that his refusal to make the pickup of the seven cars was  insubordination, claimant still refused to do so.

During the course of the investigation, and as argued by the Organization before this Board, it was made clear that the agreement relied upon by claimant was the Crew Consist Agreement which reads in part as follows:

"ARTICLE I - BASIC CREW CONSIST ***

"3. The Carrier will be permitted to operate conductor only assignments in through pool freight service when such service operates under the following conditions:

" (a) There shall be no train length or car count restrictions on such service.

"(b) Trains shall be restricted to no more than three work events enroute.

(i) A work event is considered to be a straight pick-up or set-out.

(ii) Picking up, setting out, or exchanging one or more locomotives and setting out a bad order car shall not be considered an event.

(iii) Work performed in the initial and/or final terminals will be governed by applicable rules.

***

"NOTE 3; These provisions are not intended to supplant yard engines, locals, zone locals or work trains, nor is it intended that conductor-only assignments will do general switching. 

***

"4. Employees will not be required to perform any service with less than the required train crew consist specified in this Agreement nor will they be censured or disciplined in any manner or be required to lose time for refusal to do so.

Q-l: Do the provisions of this Section apply to pick-ups and/or set-outs made enroute which would result in exceeding the agreed-to work event limitations?

A-l: Yes."

In its argument before this Board the Organization has contended that claimant here was complying with the agreement provisions when he refused to perform the "general switching" as set forth in NOTE 3 above quoted, therefore, his right of refusal, which the Organization contends is covered by Section 4 above, carries with it the understanding he would not be censured or disciplined for such refusal

It is Carrier's position before this Board that the right of refusal applies only to pick-ups and/or set-outs made enroute, and that such right of refusal was never intended to apply to a situation such as that here involved.

The question before this Board is not one involving proper interpretation or application of the basic Crew-Consist Agreement, instead it is a question of whether or not claimant was properly disciplined for his refusal to obey the instructions of a Carrier officer.

The record before us is absolutely clear that claimant was instructed to pick-up the seven cars and that he refused to do so. Absent a clear and concise interpretation that the switching of these seven cars could be considered contrary to the agreement provisions, this Board is unable to rule in claimant's favor in this dispute. We do note, however, that claimant has a long career with the industry and we do not believe his career should end over an alleged interpretation or misinterpretation of an agreement provisions. The parties would do well to submit the question of proper interpretation of the involved provisions of the Crew Consist Agreement to an arbitration panel and thereby avoid instances such as this in the future.

Based upon the often used concept that discipline is intended to be educational rather than punitive, it is the judgment of this Board that dismissal of claimant was too harsh given the circumstances here involved, and it is our finding that claimant be returned to active service with full seniority and all other rights unimpaired. Inasmuch as claimant did refuse a direct order from his supervising officer, the Board is not inclined to issue an order compensating him for time out of service. Insubordination is a serious issue and, in this instance, claimant would have been well advised to obey the instructions and then handle the issue as a grievance in accordance with accepted procedure.

AWARD

Claimant was returned to service with all rights unimpaired as a result of the bench decision rendered by the Board at the hearing on December 9, 1999. The decision here covers that portion of his claim for time lost and as noted in the above findings, the Board is not allowing pay for time lost.

Award date April 18, 2000