Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8298
SECOND DIVISION Docket No.
8127
2-FW&D-MA-'80
The Second Division consisted of the regular members and in
addition Referee George S. Raukis when award was rendered,
( Internatiaial Association of Machinists
and Aerospace Workers
Parties to Dispute:
(
( Fort Worth and Denver Railway company
Dispute: Claim of Employer:
1. That under the current Agreement and the Fort Worth and Denver Railway
Company
Schedule of Rules, the Carrier wrongfully suspended Machinist
Richard J. McGuigan from service a total of
24
days and unjustly
dismissed Claimant effective March
7, 1978,
2.
That Carrier compensate Machinist Richard J. McGuigan for payment of
all wages lost while withheld from service during the period February
10, 1978
to present and for other benefits during this period,
including credit for time lost during this period for vacation and
other rights.
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 employer involved in this dispute
are respectively carrier and 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.
Claimant was dismissed frown service on March
7, 1978
following an investigative
hearing held on February 21.,
1978
at Fort Worth, Texas to determine his
responsibility in connection with his alleged sleeping while on duty in Caboose
BN
12117
at approximately
3:15
A.M. on February 7:0,
1978.
This disposition was appealed on the property pursuant to Agreement procedures
and is presently before us.
In reviewing this case, we must first consider Claimant's procedural
objections regarding the propriety of the pre-investigation suspension, service
of the disciplinary notice and presumptive denial of due process rights.
Upon the record, we find no basis for concluding that he was improperly
treated or afforded an investigative trial that was unfair. To the contrary,
we find his general demeanor toward the disciplinary and investigative process
Form 1 Award No, 8298
Page 2 Docket No. 817
2-FW&D-MA-'80
to be somewhat uncooperative. Claimant was provided an investigative trial
that comported in all essentials with the requirements of Agreement Rule 31.
Similarly, when we review the investigative transcript, we find no evidence
that he was not sleeping in the caboose. The two carrier officials who found
him sleeping provided consistent testimony on the fact specifics of this incident
which was not effectively rebutted by his counter assertions. He was sleeping
on duty in contravention of Carrier's safety rules, particularly Rule
673
and
this is a serious offense in this industry. This Rule states:
"Employees must not sleep on duty. Lying dawn, or in
a slouched position, with eyes closed or with eyes
covered or concealed will be considered as sleeping."
We are mindful. that the various Divisions of the National Railroad
Adjustment Board have invariably upheld the disciplinary penalties imposed for
this type of infraction and thus we do not find Carrier's penalty, in this
instance, to be arbitrary or capricious. (See, for example, Second Division
Awards 4123 and 4629,) But we find sufficient justification from the record to
conclude that leniency is warranted herein that judicially observes the principles
of corrective discipline. We w111, accordingly, reinstate him to his position,
but without back pay for the time lost and admonish him that any recidivist
behavior will not be looked upon kindly by this Board.
A W A R D
Claim sustained to the extent expressed herein.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
~rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 2nd day of April, 1980,