Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD. Award No. 8500
SECOND DIVISION Docket No. 8375
2-BNI-CM-180
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( Brotherhood Railway Carme.n of the United
( States and Canada
Parties to Dispute
( Burlington Northern Inc.
Dispute: Claim of Employes:
1. That under the current Agreement Mr. G. S. Orrison, Carman, was
arbitrarily, capriciously and unjustly dismissed on June 20,
1978,
from the service of the Burlington Northern, Inc. at North Kansas
City, Missouri.
2. That accordingly, the Burlington Northern Inc. be ordered to compensate
the aforementioned carman eight
(8)
hours pay for each workday at thE:
pro-rata rate commencing June 20,
1978,
and continuing until he is
reinstated to the Carrier's service; that seniority, job protection
benefits, vacation and pass rights be unimpaired and all other
benefits accruing employees in active 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 employes 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 May
25, 1978
pursuant to Agreement Rule 35 to
determine whether Claimant slept while on duty on May
b, 1978.
Carrier found
Claimant guilty of violating Burlington Northern Safety Rules
665
and
673
and
dismissed him from service, effective June 20,
1978.
This disposition was
appealed on the property and is presently before this Division for appellate
review.
In defense of his position Claimant contends that he was not afforded an
investigative trial consistent with administrative due process procedures and
that the foreman who alleged that he was sleeping while on duty were unqualified
to determine under the specific circumstances of the situation, whether he was
in fact asleep. Moreover, lie argues that he was not apprised prior to the
rIay 25
hearing that he was being charged with violating the aforementioned Rules.
F orm 1
Page 2
Award No. 8500
Docket No. 8375
2-BNI-CM-'80
In our review of this case, we find no evidence that Claimant was denied a.
fair investigation, since the record shows that he was clearly offered ample
opportunity to present an effective rebuttal of the substantive specification.
His contention that Carrier didn't delineate specific Rule violations does not
impair the initial disciplinary notification since he was explicitly informed
that the purpose of the investigation was to determine whether or not he slept
while on duty on May
6,
1978. In Second Division Award 7936, we held on a
similar procedural issue that:
"Under well established principles (e.g. Third Division
Awards 12898, 20238 and 20285 we find that in this case
the notice was precise and comprehensive enough to place
Claimant on notice as to the matter under investigation."
We find this ruling applicable herein. The disciplinary notice stated that the:
investigation would specifically focus on whether he slept while on duty on
may
6,
1978 and such language cannot be construed as cryptic or ambiguous.
Claimant was implicitly charged with a serious offense that is grossly intolerable
in the railroad industry. The record unmistakably shows that he was asleep at
2:35 A.m. when Foreman Maughan observed him in a somnambulant state in the One
Spot Lunch Room for about three minutes, which was subsequently verified by
Foreman Brown. Claimant did not offer any probative evidence that lie was not
in this condition, other than peremptory denials which are judicially insufficient
in this instance. He was previously suspended for fifteen (15) days on
September 30, 1977 and again suspended for thirty (30) days on January 19,
1978 for violating the same rules and cc=itting the same offense. Under these:
disquieting circumstances, we are constrained by the magnitude of the offense
and his recidivist deportment to affirm the dismissal. In Second Division
Award 4629 which is conceptually on point herein, we held in pertinent part thE,t:
"Sleeping while on duty is generally regarded as an offense which
justifies discharge and, since the Claimant had only about three
years service with the Carrier, the penalty of discharge cannot
be considered excessive."
This decision is precedentially persuasive and we will deny the claim.
A W A R D
Claim denied.
Attest: Executive Secretary
Naticnal Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
/ `'~'`semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th day of November, 1980.