Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8478
SECOND DIVISION Docket No.
8296
2 -CMSt P&P-EW-' 80
The Second Division consisted of the regular members and in
addition Referee M. D. Lyden when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
Chicago, Milwaukee, St. Paul and. Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
violated the current agreement when Electrician Helpers Bruce Hodges and
Louis J. Kinnon were unjustly assessed the following discipline:
fifteen-day deferred suspension with one (1> year probationary period,
effective October
13, 1977.
2. That, accordingly, the Carrier be ordered to withdraw the discipline
given the abovenamed Electrician Helpers by expunging this incident
from their records.
Findings:
The Second Division of the Adjustmant 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.
In the testimony of the hearings, the claimants fail to produce evidence
and proof to expunge their records for the following reasons:
Time: Both sides failed to establish the lunch ,period time. Therefore,
although there was a degree of doubt as to the lunch period, based on the
testimony as a whole, it is the Board's opinion that the men in question were not
on their lunch period when Mr. Kelly observed the incident.
Transcript: Mr. Hodges' testimony contradicts itself. Mr. Hodges does not
maintain he was on lunch but instead states he was not performing services since
he was out of work.
Mr. Hodges disputes his own testimony of standing up when he therefore states
he was sitting down and talking. However, Mr. Savord states in his testimony
that Mr. Hodges was seated rather than standing. Contradictory testimony exists.
It is not observed anywhere in testimony that malicious intent existed on the part
F orm 1
Page 2
Award No.
8478
Docket No.
8296
2-CMStP&P-EW-`80
Mr. Kelly, the Divisional Mechanical Supervisor. It is the responsibility of an
employee gainfully employed to seek out the work if none existed; this Mr. Hodges
did not do. Therefore, his claim is denied.
Likewise with regard to Yir. Kinnon, he failed to properly protect his
assignment because he was found sleeping between the hours of x+:30 A.M. and
5:00 A.M. on August
9, 1977.
Mr. Kelly stated, "I peered into Unit
97C
where I
found Mr. Louis Keenon (sic) sleeping on the firemans seat with his feet propped
on the window sill. I crossed over to the middle platform and peered into Unit
2059
and saw two individuals in the prone position and entered the cab from the
door on the firemans side. I shook the individual and raised my voice. The
individual I shook was in the prone position on the firemans side. He jumped up
and at the same time the individual on the engineers side who was later determined
to be Mr. Savord, jumped up and asked what was happening. I took the name of the
indivudual (sic) I shook as being Mr. Hodges I recorded that time to be 4:46 A.M."
"Q 29 - You indicated Mr. Kinnon was asleep. How did you determine
that? A - I determined sleep as being relaxation of muscles to the
point to lose control. When I struck my head into the window of
the engineers side, had Mr. Kinnon been in contrl (sic of his
muscles he surely would have seen me and it was clear that his
eyes were closed.
Q 30 You could see that his eyes were closed. A - Absolutely, the
lighting in the building was good.
Q 34 In neither case at this particular time was Mr. Kinnon or
Mr. Hodges performing any service for the carrier. A - Absolutely
no services were being performed."
Therefore, based upon the evidence, testimony of this case and the case
as a whole, the claim is denied.
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
semarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this
29th
day of October,
1980.