The Second Division consisted of the regular members and in
addition Referee Richard F. Mitchell when award was rendered.
SYSTEM FEDERATION NO. 41, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Machinists)
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Southern Region and Hocking Division)
EMPLOYES' STATEMENT OF FACTS: Machinist Helper Leslie B. Hubbard, hereinafter referred to as the claimant, was employed by the Chesapeake & Ohio Railroad, hereinafter referred to as the carrier, for a period of 14 years, at its Newport News, Virginia, Piers.
On November 24, 1958, while engaged in the performance of his duties as a machinist helper from 7:00 A. M. to 3:00 P. M. he had an accident injuring his ribs, but did not report same.
On November 25, he reported for work as usual but was suffering considerable pain so that it was necessary for him to use a number of aspirins to relieve the pain. These aspirins did not give him sufficient relief so he decided he would ask his foreman to go home. While waiting for the foreman to ask permission to go home, he fell asleep for a short time, the record not being definite. He was found asleep by the foreman and a special agent and was directed to go home.
The claimant visited, on the same day he was sent home, the Riverside Hospital, Newport News, Virginia, for medical attention and the doctors
Hubbard had been sent home for sleeping on duty and he started looking for a means of justifying his being asleep.
Sleeping on duty is a serious offense and one which, when proven, warrants dismissal. There are no extenuating circumstances which justify consideration of leniency or the application of discipline less than dismissal in Hubbard's case.
Carrier has shown that it did not act arbitrarily, capriciously nor has it abused the discretion vested in management in its administration of discipline in Hubbard's case; therefore, the discipline administered by the carrier should not be disturbed.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Machinist's helper Leslie B. Hubbard was employed by the C&0 Railroad for a period of 14 years at its Newport News, Va. piers.
On November 25, 1958 he reported for work. Claimant did little work that morning and somewhere between 10 A. M. and 10:40 A. M. he fell asleep on a bench in the pump room. He was awakened by Mr. W. A. Otey, pier foreman, who shook him. He was asked what was the trouble and replied that he was laying down on the bench and dozed off. He was charged with being under the influence of intoxicants and asleep while on duty. An investigation was held and claimant appeared and testified. He was represented by the local Chairman. Claimant was found guilty of sleeping while on duty. The charge of being under the influence of intoxicants was dismissed and will not be further discussed.
There is no question but what claimant was guilty of being asleep while on duty, but his claim is that on November 24th, the day before he was found asleep, he was injured while working for the company on a tow motor which came in the side door at Pier 9; that he had grease on his shoe and his foot slipped off the clutch causing the tractor to run into a work bench throwing him into the steering gear and hurting his floating rib on his right side. He did not report the accident, as required by the rules of the company, at the time of the accident. As far as this record shows he never has to this date. He claims on the morning that he fell asleep his side was hurting him; that he secured some aspirin and took same; that he intended to ask the foreman to go home on account of the injury; that after being sent home on account of having fallen asleep his wife took him to Riverside Hospital where an intern examined him and treated him.
Hubbard did not at the time he was awakened by the foreman complain of having been injured or of the pain he said he was suffering. He did not on that day inform the foreman in regard to his injury. In fact the officials of the Railroad at the time all say that Hubbard did not inform them and 3712-6 413
that they had no knowledge of his injury at the time he was sent home. There is evidence of employes that Hubbard told them he was injured and suffering pain on the morning that he was sent home, but for some reason he did not inform the foreman or others connected with the company. Why he did not give notice of the injury as required by the rules of the company does not appear in the record. The employes in their rebuttal said, we quote
There are many statements in the Carrier's rebuttal in regard to Hubbard's record as an employe; that he had fallen asleep before and had been disciplined for same; that he had been talked to about his drinking and that he had been given numerous chances and that he had shown no improvement.
Hubbard violated the rules of the company. He fell asleep while on duty. For this the company was justified in disciplining him, but in view of the fact that there is evidence of the injury it does seem that the punishment was severe.
The Board is reluctant to substitute its judgment for that of the carrier officers, however we feel that under the circumstances in this case the penalty has served its purpose. The Board directs that Hubbard be reinstated with seniority and vacation rights unimpaired, but with no pay for time lost.
The majority, consisting of the Labor Members and the Referee, in our opinion went beyond the recognized rights and practices of this Board when it ruled that leniency was to be granted though claimants were guilty as charged.
Claimants were afforded a fair and impartial investigation, at which they presented witnesses in their behalf and were represented by the General Chairman of the Organization, both of whom were permitted to freely crossexamine witnesses, all in strict accordance with the rules of the applicable agreement. There was substantial and convincing evidence presented at the investigation to show that claimants were guilty of the serious charges against them.
In the handling on the property, the Carrier declined in its sound discretion to extend leniency to the claimants. The Carrier took into considera- 3712-7 414
tion the entire service records of the claimants before assessing its penalty, and under the circumstances we have no right to set aside its judgment, because no evidence was presented before this Board to show that the Carrier had abused its prerogatives.
The Carrier has a right to expect its employes to observe the rules of the controlling agreement and to be able to perform work for which they are paid. Referee Carter in Award 2207 ably stated, "It is not the function of this Board to weigh the evidence as in an original hearing. If the evidence is sufficient, if believed, to sustain the carrier's findings, the carrier's action must be sustained."
For the reasons set forth herein, the Carrier Members believe that the majority has erred with the issuance of these awards.
The Second Division consisted of the regular members and in addition
Referee Richard F. Mitchell, when the interpretation was rendered.
INTERPRETATION NO. 1 TO AWARD NO. 3712
DOCKET NO. 3630
NAME OF ORGANIZATION: System Federation No. 41, Railway Employes' Department, A. F. of L. - C. I. O. (Machinists)
QUESTION FOR INTERPRETATION: Do the words in the findings of Award 3712, reading as follows:
The carrier and employes have been unable to agree about the application of Award 3712 and the employes request interpretation of the pertinent portion of the findings therein concerning the measure of relief granted the claimant.
At no time in the Submission of this case, was the question argued by the parties that the carrier be ordered to pay claimant Hubbard in lieu of vacation, nor was it ever intended in the award that claimant was to be paid for vacation time.
Referee Richard F. Mitchell, who sat with the Division as a Member when Award No. 3712 was adopted, also participated with the Division in making this interpretation.