Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
88C:L
SECOND DIVISION Docket No, 867:!
2-CMStP&P-MA-°82
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employee:
1, That under the current Agreement and the Chicago, Milwaukee, St. Paul and
Pacific Railroad Company schedule of rules, the Carrier unjustly dismissed
Machinist Myron Wilburn from service effective October 4, 1978.
2. That, accordingly, the Carrier be ordered to restore M. Wilburn back to
service in the following manner: (a) Restore the Claimant to service with
all seniority rights unimpaired, (b) Compensate Claimant for all time lost,
(c) Make Claimant whole for all vacation rights, (d) Pay the premiums for
hospital, surgical anti medical benefits for all time held out of service,
(e) Pay the premiums for group life insurance for all time held out of
service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and a11 the
evidence, finds that:
The carrier or carriers and the employe or employee 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 record indicates that the claimant was employed by the Carrier in the
Mechanical Department of the Carrier's Wheel Shop, Building CD-9, Milwaukee, Wisconsin
Claimant was initially hired by the Carrier as a laborer on June 14, 1971, subsequentl
was promoted to a Machinist Helper position on August 2, 1973 and advanced to a
Machinist position on March 7, 1978, and at the time of the incident had a Machinist
assignment on the second shift, working 3:30 p.m. to midnight.
On August 9, 1978, Machinist Wilburn received written notification to appear
for a formal hearing for being absent without proper authority from his assigned
work area between the hours of 10:00 p.m. and 12:00 midnight on August 4, 1978, and
with sleeping in his car during that time.
The Employee charge in this discipline case that the Carrier violated Rule 34
of the controlling Agreement by dismissing Claimant from service since the charges
on which Claimant's dismissal were based were not supported by substantial evidence
in the record as a whole. The Employee claim that the Carrier has failed to carry
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Form 1 Award No.
8861
Page 2 Docket No. 8673
2-CMStP&P-MA-'v~
its burden of proof and that the charges against Claimant were not sustained by
the record.
The Carrier asserts a proven offense of sleeping on the job is considered a
dismissal offense, and when "we take into consideration the claimant's poor record
of absenteeism and tardiness, for which he had been properly warned, and insubordir
tion, which resulted in a dismissal and his sub secuent insubordination, which result
in a dismissal and his subsequent reinstatement or. a leniency basis after being held
out of service for a period of about two years", the disciplinary action that was
taken in the instant case was fully warranted and justified.
A hearing on the matter was originally scheduled to be held on August 16, 1SVfa
but was postponed and subsequently held on August 29, 1978.
The record of the investigation indicates that the Claimant denied he was
sleeping between the hours of 10 p.m.-12 midnight. His superior asserts he ob~wa
the Claimant asleep in his automobile as early as 11 p.m. after having looked for
him when he was not at his assigned work area at 1.0 p.m. This conflict in the
testimony is not within the purview of the Board to resolve, but rather must be left
to the hearing officer.
In Second Division Award 7542 (Referee Eischen), the Board held:
"The only way for us to sustain the claim is to make a credibility
determination by rejecting the Patrolman's version and accepting
Claimants. On the state of the record before us the Hearing
Officer could have easily done so, but his acceptance of the
Patrolman's story is not per se arbitrary, unreasonable and
capricious. Even if Carrier believed the wrong man where the
issue is narrowed to credibility alone, we are unable to
resolve such conflicts. Rightly or wrongly it is firmly
estau!--d:aed by a host of Awards that this appellate tribunal
shall not resolve pure credibility questions. See Second
Division Awards 6408, 6604, 7144 and 7196; See also Third
Division Awards 14556, 19696 and 21258. We often are
frustrated by this anomalous precedent, but the principle
is established, it is understood and acknowledged by the
parties and it is diapositive of the claim before us. We
have no alternatuve but to deny the claim."
The hearing officer in the instant case rejected the Claimant's version and
credited that of the Foreman. Given such a detern~ination, the evidence is sufficient
to support the charge that the Claimant is guilty of the offense of sleeping on
the job.
The Claimant's prior record was properly considered in establishing the
appropriate measure of discipline. Several awards of this division have deemed
that sleeping while on duty is a sufficiently serious infraction to warrant dismissal.
.See Second Division Award 8537, Referee Brown.)
On the entire record, the claim to reverse the decision or to modify the
penalty must be denied.
Form 1
Page 3
L. W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
By i `f ~ ~-G~
*'os
marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 13th day of January,
1982,
Award No.
8861
Docket No. 8673
2-CMStP&P-MA-'82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division