Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9184
SECOND DIVISION Docket No. 8812
2-WT-CM-'82
The Second Division consisted of the regular members and in
addition Referee David H. Brawn when award. was rendered.
( Brotherhood Railway Ca rmen of the United States
Parties to Dispute: ( and Canada
(
( Washington Terminal Company
Dispute: Claim of Employes:
1. That the Washington Terminal Company violated the controlling agreement
when they unjustly assessed Car Repairman T. Rogowsky a thirty (30)
calendar day suspension as a result of an investigation held on June 29,
1979.
2. That accordingly the Washington Terminal Company be ordered to compensate
Mr. Rogowsky for his net wage loss, and expunge this unjust charge from
his discipline record.
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.
Under date of May 29, 1979, Car Repairman T. Rogowsky was cited to appear at a
hearing on the following charge:
"Violation of WTCo. General Rule 'N', 'Participating in any
unauthorized or unnecessary activity, while on duty or while
on Company property is prohibited,' when on may 25, 1979 at
about 4:45 A.M., you were observed by General Foreman C, A.
Strickler in Car 21185 on Track 18, Station, stretched out
in two seats sound asleep. You were awakened by the General
Foreman by his holding a flashlight in your face and calling
you by name."
Following the hearing, Mr. Rogowsky was advised that he had been found guilty
as charged and would be suspended for 30 days commencing July 16, 1979. This appeal
of the discipline assessed is based an the following grounds:
1. That Carrier violated Rule 29, which provides that "No employee shall be
disciplined without a fair hearing..."
Form 1 Award No. 9184
Page 2 Docket No. 8812
2-WT-CM-'82
2. That even if Claimant was guilty as charged the discipline was
unreasonable.
This second point is certainly without merit. A 30 day suspension for sleeping
on duty is very lenient discipline. We turn to the first point.
The incriminating evidence against Claimant consisted of the testimony of
General Foreman C. A. Strickler as follows:
"Q. What knowledge do you have of the above charge in connection
with Mr. Rogowsky?
A. (Reads Statement) At 4;45 A.M., this date, I observed Car
Repairmen T. Rogowsky in car 21185 for 106 in #18 track
stretched out in two seats, middle of car on east side
sound asleep. I awakened him by holding flashlight in his
face, and by calling him by name. I asked him what he was
doing asleep and he said he rode to the Car Wash with the
train. I told him he knew not to ride to the Car Wash as he
had other things he could have done. He didn't line up train
#170 for one thing, and train 106 didn't leave for Washer
until about 3;30 A.M. The head car still had a broken window
also; same car had a footrest missing. I recommend to bring
him up on charges for sleeping while on duty;"
Mr. Rogowsky gave his version of the incident; _
"Q. Mr. Rokowsky, at this time, you will be given an opportunity
to explain what you were doing at the time that you are
charged with being asleep in car 21185.
A. Well, first of all, I did not get my proper sleep during the
day. My wife and I were planning on going down south for the
weekend to Danville and I was preparing myself to get ready,
but while I was trying to get some sleep, she was back and
forth in the bedroom getting some clothes and what not. So,
when I woke up, I was extremely tired. You see, I had been
up on charge recently for missing time, so I didn't very well
want to mark off again, so I decided that I had better come on
in. Now, when he saw me - well, I had not lined up #170, which
is true. Okay, now, when I come in at 12;00 o'clock, train
#170 usually leaves out of track #12, but they had put it
downstairs which I didn't know. I did not know about it because
it had a good amount of cars on it. And, as for the window -
well, I had the new window laying by the broken window which I
was preparing to put in myself, but I figured that I would go
ahead and wait for the train to run through the Car Wash before
I would put it in. So, the next thing I knew is that I had
found myself dozing off in the seat and all I can remember is
Strick standing over top of me. I just dozed off more or
less, but that was ·,Yhen it really happened."
Faced with this confession by Claimant, General Chairman Spero Siadys probed
for a defense;
Form 1
Page 3
Award No. 9184
Docket No. 8812
2 -WT-C M-' 82
"Q. Mr. Rogowsky, is your lunch period within the fifty (5th)
hour?
A. Yes, sir.
Q. Is 4:45 within the fifth (5th) hour of your tour of duty?
A. Yes, sir.
Q. So, in other words, the time that yogi. were possibly asleep
could have been the time that you were supposed to eat
lunch, correct?
A. Yes, Sir."
This, then, became the basis of the appeal: that Claimant was entitled to a
20 minute lunch break but did not have to eat lunch and could claim such time for
sleeping. However, C laima.nt's testimony reflects that he had no such intention on
the night in question:
"MR. SMITH: Mr. Rogowsky, Mr. S iadys made reference to the time
that you were found asleep that you could have been on your
lunch period. Did you, in fact, take a lunch period?
MR. ROGOWSKY: Well, not that day, I didn't. I did not really
feel like eating because I was a little wore out. But, certain
days I don't even get to have a lunch period, you know. And,
sometimes, I really don't feel like eating at night."
We find no merit in the Organization's argument. An employee found sleeping
on duty, as was Mr. Rogowsky, cannot exculpate himself by claiming he is observing
his lunch period.
The hearing was fairly and properly conducted; the discipline was reasonable..
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By / ;~..~ L,,.~
ema rie Bras c h - Administrative Assistant
- /~fCU
Dated ~ Chicago Illinoise this 22nd day of July, 1982.