Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9039
SECOND DIVISION Docket No. 9107
2 -Fwa-D-MA-' 82
The Second Division consisted of the regular members and in.
addition Referee Kay McMurray when award was rendered.
( International Association of Machinists and Aerospace
Parties to Dispute: ( Workers
(
( Fort Worth and Denver Railway Company
Dispute: Claim of Employes:
1. That under the current agreement and the Fort Worth and Denver Railway
Company schedule of rules, the Carrier wrongfully dismissed Machinist
B. F. Smith, following investigation, effective July 22,
1980.
2.
That the Fort Worth and Denver Railway Company accordingly reinstate'
Machinist Smith, compensate him for all wages lost as a result of said
dismissal, and restore to him unimpaired all other rights and
privileges of employment.
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. Smith, was notified by letter dated June
30, 1980,
to appear
for an investigation on July
8, 1980.
He was charged with "failure to be alert
and attentive while on duty at Childress, Texas, at about 6:00 A.M., Sunday,
June
29, 1980".
By agreement the hearing date was rescheduled and held on
July 11, 1980.
Following that investigation the penalty herein complained of
was assessed.
The Organization raises the defense that the Carrier violated Rule
31
of the
agreement because penalty was assessed on the basis of an investigation. that was
neither fair nor impartial. It points out that one of the Carrier's witnesses
commenced his testimony as follows:
"L. D. Tackett (the hearing officer), per your request for a
statement concerning upcoming investigation of Ben Smith."
It views the foregoing as indicative that the hearing officer procured and
injected testimony in the record. Further, it points out that the testimony
was about events after the incident and, therefore, had nothing to do with the
charges and, thus, the record is taint. We find no merit to the claim. The
Form 1 Award No.
9039
Page 2 Docket No.
9107
2 -FW&-D-MA-' 82
fact that a hearing officer requested a statement from one who might assist in
developing a complete record does not constitute prejudicial action. It would
be difficult to conduct a proper investigation without requesting that persons
having knowledge of the events be present to testify. We agree with the
Organization that the testimony of the particular witness was extraneous and had
little bearing on Claimant's guilt or innocence. However, that fact does not
taint the entire record. The records are often padded with immaterial testimony
by both parties. It is the function of the hearing officer and this Board to
determine the relevant evidence and make a proper decision.
Secondly, the Organization views the questioning of the Claimant by the
heariLg officer as indicative that he had prejudged the witness. A careful
review of the record does not verify such a view. The questioning was lengthy
but in view of the nature of the problem, it is understandable that a hearing
officer would question in order to determine the veracity of the witness'
statements. We find the investigation was conducted in accordance with contractual
requirements and past practice.
The record with respect to the charge is clear. A Mechanical Foreman testified
that on the day in question he attempted to find Mr. Smith to give him a new
assignment. After searching for approximately thirty minutes he was alerted
by another employee that Claimant was in the boiler room. He found Claimant
at that location at approximately 6:00 A.M. He described his position as lying
on the floor with his eyes closed and asleep. Three efforts to awaken him by
calling his name were unfruitful. Accordingly, he left and called the Foreman
of Engines to come to the scene. Approximately fifty minutes later the Foreman
of Engines and the Mechanical Foreman returned to the boiler room and found the
Claimant in the same position on the floor asleep. He awakened after loud
calling of his name three times. The testimony of the Foreman of Engines
corroborates the testimony of the Mechanical Forena n.
Contra the foregoing we have only the self-serving testimony of Claimant
that he was only in the boiler room for fifteen minutes and was not asleep.
It is well understood that this Board is in no position to determine the
credibility of witnesses. Based on the foregoing and the entire record, however,
it is clear that the preponderance of credible evidence supports the position that
Claimant was, in fact, asleep and the charge was sustained. Sleeping on the job
has long been recognized as a breach of the rules which can result in dismissal
from service. Claimant was a short-term employee of approximately eight months
and, accordingly, the Carrier was within its legal rights to take the dismissal
action.
A WAR D
Claim denied.
Form 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
Award No. 9039
Docket No. 9107
2-FWLD-IAA-' 82
NATIONAL RAILROAD ADJUSMIENT BOARD
By Order of Second Division
~/Ro emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 21st day of April, 1982.