Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7219
SECOND DIVISION Docket No. 7066
2 -N&1-CM-' 77
The Second Division consisted of the regular members and in
addition Referee Gene T. Ritter when award was rendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That under the Current Working Agreement the Carrier unjustly
dismissed Carman Walter M. Szymanczyk on November 8, 1974.
2. That Carrier be ordered to reinstate Caiman Walter Szymanczyk
to service, compensate him for all time lost beginning October 21,
1974, the day he was initially withheld from service, make him
whole for seniority rights, vacation rights, sick benefits,
health, welfare and life insurance benefits, and all other
benefits he would have received had he not been unjustly withheld
from service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employs 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.
Parties to said dispute waived right of appearance at hearing thereon.
On claim date, Claimant was assigned to inspect and make repairs to a
certain trailer. Claimant's foreman went to the trailer and found Claimant
on the floor of the trailer asleep. The Foreman left the trailer and returned
with his Assistant Foreman for the purpose of witnessing Claimant and found
that Claimant was lying on the trailer floor asleep. Claimant was awakened
and relieved of duty for the rest of the day. A formal investigation was
scheduled wherein Claimant was charged with sleeping on duty. The
investigation resulted in dismissal of Claimant from service. The record
reveals that Claimant's service record was reviewed and that during
Claimant's three (3) years and ten (10) months' service with Carrier,
Claimant had been given two (2) prior formal investigations resulting in a
ten (10) day deferred suspension and a fifteen (15) day actual suspension
for not properly performing his work. Claimant defended the action by
testifying that he had been taking medication; that because of the medication,
Form 1
Page 2
Award No. 7219
Docket No. 7066
2-N&W -CM-'77
he was groggy and although he denied being asleep, he did not contest the
allegation that he was not awake. The record reveals sufficient evidence to
justify the finding of guilty. The result of the investigation was appealed
to the Car Foreman and denied by said Car Foreman on February 7, 1975. The
appeal was then filed with the Vice President - Administration and declined
by said Vice President - Administration on September 18, 1975. Article V
of the National Time Limit Rule Agreement merely states that Carrier will
disallow claims - not officer. Therefore, this claim is not subject to
dismissal. Therefore, it is the opinion of this Board that Claimant should
be restored to service without pay for time off.
A W A R D
Claimant restored to service without pay from date of dismissal until
thirty (30) days from date of this Award.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
000-0
0
By'
'A
1'..'
osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 25th day of January, 1977