Form 1 NATIONAL RAILROAD ADJUSTM= BOARD Award No.
7992
SECOND DIVISION Docket No,
792+
2-SPT-CM-' 79
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No.
162,
Railway Employer'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Southern Pacific Transportation Company
Dispute: Claim of Fmplayes:
1. That the Southern Pacific Transportation Company (Texas and
Louisiana. Lines) violated Rule
34
of the controlling agreement
when they unjustly assessed Cayman T. J. Teamer's personal record
with sixty
(60)
demerits on May 23,
1977,
following investigatiozi
held on May 1%, 177.
2,
That accordingly, the Southern Pacific Transportation Company
(Texas and Louisiana Lines) be ordered to remove the sixty
(60)
demerits from Carlnan Teamer's record.
Findin
sue:
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 employer involved in this
dispute are respectively carrier anal employe -within the meaning of the
Railway Labor Act as approved June 21,
193.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Following an investigative hearing, Claimant's discipline record was
assessed
60
demerits "for sleeping while on duty as Cayman, Englewood Yard,
at approximately
2:25
A.M.,, April
29, 1977,
which is a violation of Rule
810 of the General Rules and Regulations of the Southern Pacific Transportation
Company."
General. Rule 810 provides in part:
"Employes must not sleep while on duty. Lying down or
assuming a reclining position, vrith eyes closed or eyes
covered or concealed, will be considered sleeping."
The Organization raises two threshold issues: first, that the Carrier
official who cited Claimant for investigation was also the officer assessing
Foam l
Page 2
Award No.
7992
Docket No.
792+
2-SPr-CM-' 79
the discipline following the investigation, thus deny-Ing the claimant a
"full and impartial investigation" as required by Rule
34;
and second, that
the Agreements provides no rule for assessment of demerits on an employe's
record.
As to the first point, the Board finds that the procedure followed in,
this instance did not deny the Claimant his fk.U rights under Rule
34.
Numerous previous Awards have dealt with the multiplicity of role question..
To find that a claimant's rights have been impaired, such a~-ards have relied
on more than the technicality of the participation of a Carrier officer in.
more than one role. In this instance, a different official conducted the
hearing and the witnesses were those Carrier supervisors directly involved.
in the incident.
Pro
impairnant of the light to a full defense and an
impartial heating was involved in this instance.
As to the second point, the Organization offers no reasoning or
support for its objection to the use of disciplinary demerits in lieu of
a suspension or removal. action. Carrier correctly asserts that the Agreement
does not restrict it as to a method of assessing
disciplinary
penalties.
The record is undisputed that this Carrier has employed tine demerits system
for some tide.
As to the question of whether the Claimant vms guilty of the offense
charged, two Carrier witnesses testified with consistency and certainty that
they had observed the Claimant asleep in the cab of a truck. Claimant's
explanation
that he was merely moving across the truck seat to get out is
self-serving. The Board finds no reason to question the Carrier's resolution
of this conflict against the Claimant. Nor is there any demonstration of
discriminatory treatment against the Claimant in exercising disciplinary
measures in the face of a violation of Rule 810, satisfactorily proved
through a fair and impartial investigation.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJLJSThENT BOARD
By Order of Second Division
By ~ -sz.-- ~ ,Z_e.~°
~emarie Branch - Administrative Assistant
Dated a( Chicano Illinois, this 27th day of June,
1979.