Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No.
8439
SECOND DIVISION Docket No.
8363
2-BNI-CM-'80
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
System Federation No.
7,
Railway Employes'
Department, A. F. of L. C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Burlington Northern Inc.
Dispute: Claim o f Employes:
1. That the Carrier violated terms of the current Agreement, particularly
Rule
35,
when Seattle Coach Cleaner, Linda F. Stepney, was improperly
and unjustly dismissed from service on March 22,
1978.
2.
That accordingly, the Burlington Northern, Inc. be required to return
Coach Cleaner, Linda F. Stepney, to active service and reimburse her for
all lost time during her suspension, restoration of all fringe benefits
including vacation, seniority, pass rights, made whole for all Health
and Welfare and Life Insurance benefits, made whole for pension benefits
including Railroad Retirement and Unemployment insurance, and made
whole for any other benefits that she would have earned during the
time she was held out of service commencing March
22, 1978,
and continuing
until properly restored to service.
F ind ings
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 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.
An investigation _was held on March
7, 1978
to determine whether Claimant
slept while on duty and thus failed to comply with instructions on February
16,
1978
when she was assigned to clean the interior of Car
21171
on Track
7,
Train
794.
Neither Claimant nor her representative attended the hearing, despite
proper notification and she was dismissed from service on March
22, 1978
for
violating BN Safety Rules
667
and
673.
These rules are referenced as follows:
Rule
667 - "Employees
. must comply with instructions from proper
authority."
Form 1 Award
No. 8439
Page
2
Docket
No. 8363
2-BNI-CM-'80
Rule
673 - "Employees
must not sleep while can duty. Lying
down, or in a slouched position, with eyes closed or with
eyes covered or concealed will be considered as sleeping."
This disposition was appealed on the property and is now before this Division.
In reviewing the procedural objections raised by Claimant, we do not find
that Carrier erred or manifested prejudicial bias when it administered the
investigative hearing in an ex parte manner, since niether Claimant nor her surrogate
representative appeared at the investigation. Admittedly, she notified the General
Foreman of C^rs on March 1,
1978
that she was under doctor's care and off sick,
but did not request at any time, that the investigation be postponed, The hearing
was held as scheduled, consistent with traditional practice and she was found
guilty of violating the aforesaid rules. In Second Division Award
5987,
involving
a conceptually related case, we held in pertinent part:
"When Claimant failed to appear at the hearing
...,
after
having been properly served with notice, he acted at his
peril; and Carrier's proceeding with the hearing in his
absence was not a denial of due process."
We find this judicial principle applicable to the facts herein, since Claimant
failed to request a timely postponement.
Similarly, we have carefully assessed the trial-transcript and do not find
that the hearing officer acted unfairly or conducted a questionable investigation.
He was not estopped under these circumstances from receiving into the record only
the testimony of Carrier witnesses, which in fact, was succinct and specific,
or concluding from this evidence that Claimant violated Safety Rules
667
and
673.
This was the third time that Claimant had been charged with sleeping while
on duty and her past record of attendance and performance indicated a problemsome
employee. Her supervisor testified that he observed rer sleeping on February
16,
1978
at about
1:30 P.M..
and this was confirmed by a clerk, who was summoned to witness
the infraction. We recognize, of course, that Claimant didn't appear at the
investigation, but she was amply warned and sufficiently knowledgeable to understand that a scheduled investigation could be postponed. She made no visible
or constructive attempt to postpone the March
7, 1978
hearing and such deportment
when coupled with the serious charges cited and her deplorable work history,
justified the penalty of dismissal. The Claimant was certainly mindful of the need
to improve her work habits and attitudes and unfortunately she did not do so to her
detriment. We will deny the claim.
A W A R D
Claim denied.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 81+39
Docket No. 8363
2-BNI-CM-'8o
NATIONAL RAILROAD ADJUSTENT BOARD
By Order of Second Division
By _
s marie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 21st day of August, 1980.