C:\AWARDS\OUT\2-07896.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7896
SECOND DIVISION Docket No. 7758
2-L&N-FO-179

The Second Division consisted of the regular members and in addition Referee Abraham Weiss when award was rendered.

( System Federation No.

91,

Railway Employes'

( Determent, A.

F. of L. - C. I. 0.

Parties to Dispute: ( (Firemen & Oilers)
(
( Louisville and Nashville Railroad Company

Dispute: Claim of Eaployes:

1. That under the Current and Controlling Agreement, Service

Attendant Roy Rivers, Jr., was unjustly dismissed from the

service

the I~T Railroad Company on January

25, 1977,

after

a formal investigation -v,as held on January 5, 177, in the office

of Mr. C. E. Stewart, P:iaster Mechanic,

That accordingly, Service Attendant Roy Rivers, Jr., be restored

to his regular assigrLment at Sibert Shops, Mobile, Alabama with

all seniority rights unimpaired, vacation, health and welfare

benefits, hospital and life insurance be paid and compensated

for lost tune effective January

25, 1977.

Fs.ndin~;s:

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 tree Railway Labor Act as approved June 21, 193+.

This Division of the Adjust?rent Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

Claimant eras dismissed on two grounds: (1) that he had brought a woman onto company property without permission; and (2) that he was sleeping while on duty. On the day in question, Claimant w-as assigned to the third shift, 11:00 P.M. to 7:00 a.m.

With respect to the first charge, a review of the record discloses that the woman~in question was Claimant's common-law wife who drove Claimant to work on the date in question and accompanied him to the locker room.
Foam l Award No. 7886
Page 2 _ Docket No. 7758
2-r&N-FO- '79

A Carrier Special Agent testified that he observed the woman "for only 4 or 5 minutes while actually on our property," When asked whether he observed "anything immoral or indecent" about her appearance, he answered "no, sir". Claimant and his common-law wife testified that she was helping him transfer clothing from the car to the locker room when the Special Agent entered the locker room and questioned him as to her identity. The Special Agent left the locker roam, and she then left the premises. The record also indicates that the Lead Miachinist on the third shift saw Claimant and his common-law wife in the locker room shortly after the shift starting tire and upon learning of their relationship, and that she had driven h:irl to work, returned to his office without requesting her to leave the property, since he asswned that she was leaving. With respect to the second charge, sleeping while on duty, we glean the following from the record: At about 2: 00 a.m., the same Special Agent who had earlier entered the locker room and found Claimant with his c~n:~non-law wife, asked the Lead Machinist to accompany horn to ask the Claimant some questions. When the two men arrived at the locker room, according to the Lead Machinist, the Claimant "had his head on the table asleep". The Lead Machinist also testified that he had not been looking for the Claimant prior to the Special Agentts request; that there was no set time for lunch breaks ( employees taking them at opportune times "when it doesn't interfere with our work duties"); that the Claimant was not interfering with operations at the time he was found asleep; that Claimant could have been on his lunch break; and that "some employees sleep on their lunch break". While the record supports the Carrier's findings, it certainly is not of sufficient force to warrant such extreme disciplinary action as dismissal.. Under the circumstances hereinabove described, we will direct that Clauaant b e reinstated immediately to the post he held at the tire of his dismissal with seniority and all rights unimpaired, but without back pay.

A W A R D

Clain sustained to the extent indicated in the Findings. Form l Award No, 7896 Page 3 Docket No. 7758 2-ZSN-FO- t 79 NATIONAL RAILROAD ADJUST14ENT BOARD By Order of Second Division Attest; Executive Secretary National Railroad Adjustment Board __,_.-- Y ~?`~ -~'~-~-x.._ e' !x; f~ v'j ,. o~:maxie Brasch Administrative Assistant Dated at Chicago, Illinois, this 19th day of April, 1979.