Form 1 NATIONAL RAIIROAD ADJUMENT BOARD Award No. 8522
SECOND DIVISION Docket No.
8504
2-NRPC-BM-'80
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That the Carrier violated Rule 23 of the Current Agreement on December
8,
1978
on which date Boilermaker E. J. Henderson was terminated from
the service of the National Railroad Passenger Corporation.
2. That accordingly, the Carrier be ordered to reinstate Boilermaker
Henderson to service with his seniority ,rights, vacation rights, and
all other benefits that are a condition of employment unimpaired, with
compensation for all lost time, reimbursement of all losses sustained
account loss of coverage under health and welfare and life insurance
agreements during the time held out of 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 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.
The claimant had been employed with the carrier since November
17, 1975.
Prior to his dismissal, he was holding the position of Boilermaker at the
Carrier's Wilmington maintenance facility in Wilmington, Delaware.
On November 24,
1978,
the Carrier directed a notice of investigation. He
was to appear on November
27, 1978,
on the following charge:
"Violation of the National Railroad Passenger Corporation
Rules of Conduct, Rule 'L', in that:
At approximately 1:x+0 p.m., November
17, 1978
at the
pantograph repair location, north end, #+ Track,
Locomotive Shop, in walkway behind parts rack, you
were observed sleeping while on duty and under
compensation."
For the record, Rule "L" reads as follows:
Form I Award No. 8522
Page 2 Docket No.
8504
2-NRPC-BM-'8o
"Employees shall not sleep while on duty, be absent from
duty, exchange duties or substitute others in their
place, without proper authority.
As a result of the investigation the carrier dismissed the claimant effective
December
8,
1978. The claimant was notified of such by letter of the same date.
The carrier argues that there is more than substantial evidenca to support
the charge and when the claimant's past record is taken into consideration dismissal
is justified. The carrier's first witness was Mr. Roy L. Roop9 General Foreman.,
Mr. Roop testified that at approximately 1:x+0 p.m. on November 17,
1978,
he
noticed Mr. Henderson sitting behind the parts rack and that he "appeared" to
be sleeping. He then summoned Mr. C. J. Parks and Mr. R. J. Parke, both
foremen, to observe Mr. Henderson. He recalled Mr. Henderson was "sitting down;,
leg raised position, his arm was on his leg and his head was resting on his hand
in a downward position and eyes closed". Three minutes had lapsed between when
first observing Henderson and when he got the Parkes. Henderson's poaition had
not changed when he returned with the Parkes. Mr. Roop then shook Mr. Henderson
"lightly" the first time, "vigorously" the second time. Mr. Roop testified
he then asked Mr. Henderson what he was doing. Allegedly, his reply was "I guess
I am getting up". Under cross examination, Mr. Roop indicated the first time he
nudged Mr. Henderson he nudged him with his foot and the second time with his
hand.
Mr. C. J. Parke testified that Mr. Henderson was observed by himself, Mr.
Roop and Mr. R. J. Parke "apparently sleeping". At the time, 'Mr. Henderson was
"sitting down
...
with his head resting on his hand". Mr. Parke also testified
that there was conversation between he and Rocp at the scene but Henderson
didn't apparently hear it. Mr. Parke also collaborated Mr. Roop's testimony
that he had to shake Mr. Henderson twice. But according to his recollection
Roop nudged Henderson both times on the arm.
Mr. R. J. Parke also testified that Mr. Henderson appeared to be asleep. lie
was in a sitting position with his feet off the ground with his head against his
knee. He also stated that Mr. Roop nudged Mr. Henderson twice.
The organization argues the dismissal is unjust. They assert the claimant
was not asleep. They also assert there is insufficient evidence as a result of
discrepancies between the testimony of the carrier's witnesses and as a result of
the uncertainty of their testimony to support the charge. As a result, they
further argue, a fair hearing was not afforded.
Regarding discrepancies in testimony, they point primarily to the discrepancy
between Mr. Roop and C. J. Parke regarding the manner in which Mr. Henderson was
nudged. Room testified he nudged Mr. Henderson first with his foot (apparently
against Henderson's foot) and then with his hand. Mr. C. J. Parke testified
Mr. Roop nudged him both times on the arm. Also, the organization points out
the differences in the witnesses' recall regarding the position that Mr. Henderson
was when observed. The Board notes C. J. Parke and Roop indicated Henderson's head
was resting on his hand whereas R. J. Parke said his head was resting on his
knee.
Form 1 Award No.
8522
Page
3
Docket No.
8504
2-NRPC-BM-'80
These arguments about the discrepancies essentially aunt to
4.·°.
argument
regarding the credibility of the carrier's witness. Also, according _.. the
organization, the carrier witnesses cannot be believed because of the tentative
nature of their testimony. For example, they feel the use of phrases such as
"appear to be sleeping" and apparently sleeping" are not positive evidence of
the claimant's guilt.
The Board also notes a conflict in testimony. Mr. Henderson indicates he
was not sleeping but "thinking". As for why he was sitting in an area away from
his work station during work time he explained he was taking the rest of his
lunch break. He had been deprived of his entire lunch break because he didn't
hear the lunch whistle and worked into his break period.
In discipline cases, the Board's function is to consider whether there was
a 'fair hearing, whether there is substantial evidence to support the charge
and whether the penalty assessed was disproportionate to the offense to an extent
to be considered arbitrary, unreasonable or capricious. Regarding conflicts
in testimony and credibility issues, it is well recognized that as a result of
the appellate nature of this tribunal these matters are to be considered by the
initial trier of facts. The Board is bound to uphold the hearing officer's
resolution of conflict and credibility issues so long as they are supported by
substantial evidence.
In reviewing this case in light of our appellate role, we can say there is
substantial evidence to support the hearing officer's decision. The meaning to
be attached to the phrases "appeared to be asleep" and "apparently asleep" can
only be successfully ascertained by observing the demeanor of the witnesses.
This Board is not in a position to observe the demanor of the witnesses, therefore
we properly deferred to the hearing officer's judgement. The hearing officer
also did not feel that the discrepancies in the carrier witnesses testimony were
crucial or sufficient to lead him to disbelieve the fundamental veracity of their
observations. Where the claimant was nudged and whether his head was on his knee
or in his hand is essentially immaterial in determining whether he was asleep.
All things considered, the Board believes that there is substantial evidence
to support the hearing officer's resolution of credibility and conflict issues
in favor of the carrier's witness. We note here too, as it has been other places
(see Third Division Award
21054
- Eischen) that carriers' witnesses such as
foremen are not entitled to any greater credibility than a claimant per se
but that the crucial issue is as if the resolution is supported by substantial
evidence. There is presented in the record substantial and material evidence
that the claimant was in fact asleep. Three men observed him in a position that,
is conducive to sleep. They all observed the claimant in some way nudged twice
before his attention was obtained and that he appeared startled. As a result,
trey all believed he was sleeping. The hearing officer's conclusion that these
three men's observations deserve more weight than the claimant's is not unreasonable
and has substantial foundation in the evidence.
Regarding the quantum of discipline, the Board notes a deplorable past record
including the previous suspension and a previous dismissal. This has convinced
us that there is nothing arbitrary, capricious or unreasonable about the
discipline. The claimant has successfully distinguished himself as neither
desirous or worthy of continued employment.
Form 1
Page
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8522
Docket No. 8504
2-NRPC-BM-'80
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 3rd day of December,
1980.