Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8614
' SECOND DIVISION Docket No.
8345
2-L&N-CM-'81
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
( Brotherhood Railway Carmen
of
the United States
Parties to Dispute: ( and Canada
(
( Louisville and Nashville Railroad Company
Dispute: Claim
of
Employes:
1. (a) That Carman E. E. Monhollen was improperly withheld from Service
from 6:10
AM.,
through
7:00
AM. (50 Minutes) on September
25, 1977,
and
(b) That Carman E. E. Monhollen was then improperly suspended from service
from for a period of thirty (30) days or from October
31, 1977,,
through November
30, 1977,
inclusive, and
(c) That the Louisville & Nashville Railroad wrongfully withheld and
suspended Mr. Monl_`_llen from >errice in violation of the Agreement..
(d) That the actions of the Conducting Officer were improper and in
violation of the Agreement when he failed to start and conduct tha
investigation as scheduled, not once but twice, 9:00 AM., September
29, 1977
and again at 10:00 ATM, September
29, 1977,
and then
reschedulingthe investigation for 9:00 October 4,
197'7,
2. Accordingly, the Louisville & Nashville Railroad should be ordered
to,
(a) Compensate him fifty
(50)
minutes at the straight time rate for
being withheld from 6:10 to
7:00
AM, September
25, 1977,
and
(b) Compensate him for eight hours and thirty
(8' 30")
at time and onehalf rate account not being called for a Road Miscellaneous call on
September
25, 1977,
and
(c) Compensate him for all time lost as a result of his being suspended
from service from October
31, 1977
through November
30, 1977,
inclusive, or one hundred and seventy-six
(370)
hours at straight
time rate, and ninety-six
(96)
hours at the time and one-half rate,
or that which he would have earned had he not been improperly
suspended.
(d) That the
L.',~N
Railroad should be advised that the Agreement between
the parties signatory thereto did not show intent in the writing
of
Rule 34, to allow "actual days suspension", and
Form 1 Award No.
8614
Page 2 Docket No.
8345
2
-Jr&N
-CM-'
81
(e) That due to the Carriers conducting officer failing to appear and
conduct the investigation as scheduled, not once but twice, that
the h&N Railroad be instructed that due to this procedural violation
that the claim be remanded back to the Carrier with instruction
to allow the claim as presented in its entirety.
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.
Claimant, Mr. E. E. Monhollen, is employed as a carman at Cabin, Kentucky.
At the time of the incident under consideration he was assigned to the third shift.
At approximately
5:15
a.m. on September
25, 1977
his foreman needed him to perform
set and release brake test on a train. Upon entering the office to find claimant
he observed him lying on his side with his eyes closed. He called him by name and
shortly thereafter Mr. Monhollen sat up, listened to the foreman's instructions
and accompanied him to the work site. During their discussion, while the work was
being performed, claimant asked his foreman if he believed that claimant was asleep
when spoken to in the office. The foreman responded in the affirmative. Mr.
Monhollen informed him that if such was his belief, he should exercise his foreman's
authority and remove him from service. Whereupon, the foreman did relieve him its
suggested.
By letter dated September
27
Claimant was notified to appear for a formal
investigation on September 29. He was charged with sleeping on duty.
After the parties met on September 29, the Carrier postponed the hearing due
to the fact that the hearing officer was not available. It was rescheduled and
completed on October ?+,
1977.
The Organization raises two objections claiming that both actions violated
Rule 34 of the Agreement which deals with disciplinary matters.
First, it claims that the suspension of Mr. Monhollen violated that rule. The
rule provides that: "Suspension in proper cases pending a hearing, which will be
prompt, shall not be deem ad a violation of this rule." Based on the record and -thefact that Claimant verbally challenged the foreman's authority, we cannot conclude
that the Carrier abused its authority or the rule.
F orm 1
Pa ge
3
Award No.
8614
Docket No.
8345
2-L&N-CM-'81
Second, the Organization views the postponement of the original hearing as
a violation of Rule
34-.
It is not uncommon for such investigations to be postponed
at the request of either party for good and sufficient reason as was the case in
the circumstances here under consideration: Rule
34
contains no time limits, but
simply states that the hearing will be held promptly. The time from the incident to
the actual hearing was nine days. Given the necessary period of notification we
View this period of time as sufficient to meet the rule requirement. Further,
Claimant's rights were not jeopardized during this reasonable period of time.
There is conflicting testimony in the record with respect to the charge of
sleeping on duty. The credible evidence indicates that Claimant was lying on his
side with his eyes closed. He was somewhat less than alacrative in his response
to the foreman's initial approach. Further, his concern that the evidence might
lead the foreman to such conclusion is evidenced by the personal challenge he later
made to the foreman's judgment and authority. The preponderance of evidence indicates
that Claimant had actually fallen asleep. However, his recovery was short and no
harm was done to the schedule of work required. The record indicates that Mr.
Monhollen had a good record with the Carrier and no previous transgressions were
noted. Accordingly, we agree with the Organization that under all the circumstances
surrounding this incident the thirty day suspension was somewhat harsh for a first
offense.
A W A R D
The claim with respect to the initial suspension from duty is denied. Claimant
will be given a fifteen (15) day actual suspension in lieu of the thirty day penalty
originally assessed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order. of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
Rasemarie Brasch - Administrative Assistant
Dated'at Chicago, Illinois, this 28th day of January,
11081.