C:\AWARDS\OUT\2-08294.htm

Form 1 NATIONAL RAILROAD ADJUSTMM BOARD Award No. 8294
SECOND DIVISION Docket No. 8165
2-S Fr-Clue' 80
The Second Division consisted of the regular members and in addition Referee Key McMurray when award was rendered, ( System Federation No. 162, Railway Employee' ( Department, A. F. of L. - C. I. 0. Parties to Dispute: ( (Carmen) ( ( Southern Pacific Transportation Company Dispute: Claim of Employee

1. That the Southern Pacific Transportation Company (Texas and Louisiana Lines) violated Rule

of the controlling agreement when they unjustly dismissed Carman J. H. Cook from their service December

30, 1977,

following investigation held December

28, 1977.

That accordingly, the Southern Pacific Transportation Company (Texas and Louisiana Lines) be ordered to reinstate Cayman Cook to service with seniority rights unimpaired and compensate him for all time lost since December 30,

1977,

until returned to 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 employe or employee involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved Jane 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.

The claimant, Mr. J. H. Cook, is employed by the carrier as a Barman at its Englewood Yard, Houston, Texas, On December 5, 1977, he received a notice of hearing which read:

"You are charged with responsibility for being asleep while on duty at approximately

x+:30

A.M. at the West End of North Yard, Englewood Yard, which may be a violation of Rule 810 of the General Rules and Regulations of the Southern Pacific Transportation Company, while employed as Cayman, on December

5, 1977.

Investigation will be held at 8:30 A.M. Monday, December 12,

1977,

in the office of Superintendent, Room

216,

SP Building,

913

Franklin Avenue, Houston, Texas."

Form 1 Page 2 Award No. 829+
Docket No. 8165
2-SPT-CM-180 At the request of the organization the hearing was postponed and eventually held. on December 28, 19?7. The claimant did riot attend the hearing on that date and the organization requested that the hearing officer again postpone the session in order for the grievant to be heard. The request was denied, abjection noted in the transcript, and the claimant was heard through his representatives. The organization raises the defense that the hearing was tainted by the absence of the claimant. This Board cannot so find. The claimant was given adequate notice and the hearing was postponed once in order to accommodate him. Further, there was no good reason given for his absence. In fact, the organization did not know why he failed to appear. Under these conditions, adequate opportunity for appearance was provided and the carrier was within its legal rights to continue the investigation. Rule 810 reads in pertinent part: "Employees must not sleep while on duty. Lying down or assuming a reclining position, with eyes closed or eyes covered or concealed, will be considered sleeping." Sufficient evidence was presented at the hearing to determitYe that the claimant was, in fact, asleep for some brief period of time and was awakened by the trainmaster. The rule was violated and some form of disciplinary action was warranted. Based on the entire record, this Board finds that permanent dismissal is not appropriate. The claimant has suffered financial loss since his separation from the carrier and it is hoped that such loss will be remedial in nature. Claimant should be warned, however, that transgression of such rules is a serious offense and future violations may invoke a heavier penalty. A W A R D Claimant will be returned to his position without compensation for lost service. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Attest: Executive Secretary National Railroad Adjustment Board isemarie Brasch - Adnxi.nistr ive Assistant Dated at Chicago, Illinois, this 26th day of March, 1980.