Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.9204
 SECOND DIVISION Docket No. 8881
 2-CRI&P-0I-' 82
 The Second Division consisted of the regular members and in
 addition Referee Steven Briggs when award was rendered.
 ( Brotherhood Railway Cayman of the United States
 Parties to Dispute: ( and Canada

Dispute: Claim of Employes:




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 employer 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.

The Claimant, a cannan at 47th Street, Chicago, Illinois, had been in the Carrier's employ for less than one year when on May 2, 1979, he was allegedly found sleeping by his supervisor on two occasions during the 11:00 p.m. to 7:00 a.m. shift. After the second instance, he was sent home. His duties had not been completed, so the supervisor removed two other coach cleaners from their jobs to finish the Claimant's work. On May 9, 1979, an investigation was held and, as a result, the Carrier determined that the Claimant had violated Rules Q and N of Form G-147 Revised by sleeping on duty. The Carrier dismissed the Claimant effective May 12, 1979.

 The Claimant argues his "check had been held up pay day May 2" and he "had things to take care of so I (he) was tired". He denies sleeping in the car, but acknowledges that his supervisor came into the car about 12:30 a.m. and 2:30 a.m. and touched him on the shoulder. Nothing in the record indicates that the Claimmlt was suffering from say mitigating circumstances, such as a physical illness for example, which might have adversely affected his ability to remain alert that night.

 The Board's decision on the merits of this case hinges on the respective credibility of the Claimant and his supervisor. The supervisor testified that he had to shake the Claimant and shout at him on both occasions that night in order to awaken him. The Claimant testified that he was tired, but denies that the
 Form 1 Award No. 9204
 Page 2 Docket No. 8$81

supervisor shook him or shouted at him during their first encounter. He admitted that, on the second occasion, the supervisor touched him on the shoulder. He did not explain how the supervisor might have gotten close enough to touch him on the shoulder without the Claimant realizing that the supervisor was in the railroad car with him. Furthermore, the fact that the supervisor called in two other coach cleaners to finish the Claimant's work is well-documented. On balance, the record seems to suggest that the supervisor's version of the events of May 2, 1979, is the more credible. Therefore, the Board has concluded that discipline was appropriate.

 The question of the severity of the discipline must be addressed as well. The Carrier acknowledges that dismissal may, on the surface at least, appear to be severe. It points out, however, that the Claimant's short service (less than one year) and unsatisfactory attendance record (25 instances of absence) justify such a penalty. The Board agrees.

 The Organization has raised a procedural issue as well. It claims the Carrier violated Rule 34 (Discipline) of the controlling Agreement when it failed to provide the General Chairman with a copy of the notice of discipline within 10 days of the completion of the investigation. The Carrier acknowledges its failure to do so, but maintains it was an oversight and in contrast to normal practice.

 ?pule 34 was negotiated by the parties to provide due process to disciplined employes, and the Board generally holds that its procedural requirements must be
 met. However, such a posture does not mean that a procedural infraction by a _

 Carrier automatically results in the setting aside of an otherwise dust disciplinary
 action. The important question here is whether the Claimant's position in this
 case and his right to due process were adversely affected by the Carrier's failure
 to send a copy of the discipline decision to the General Chairman within the
 prescribed 10 days. We think not. Both the Claimant and his local representative
 received timely copies of said notice, and the investigation itself afforded the
 Claimant and his representative ample opportunity to question Carrier witnesses.
 Furthermore, the General Chairman was apparently apprised of the discipline decision
 within the contractual 60-day appeal period, for he mentioned in a letter of June
 18, 1979 that he had not received a copy.

 Clearly, the Carrier did violate a procedural aspect of Rule 34. The Board has concluded, however, that such violation did not adversely affect either the Claimant's right to due process or the spirit of the Rule. Accordingly, the Board will not set aside the Claimant's dismissal for this procedural violation.

 Finally, the Carrier has raised an important jurisdictional question. By the time this matter had advanced to the Board (February 4, 1982), the Carrier had been ordered in connection with bankruptcy proceedings to liquidate. The liquidation order was haaded down by a United States District Court on January 25, 1980. The Carrier claims it has not existed as such since that date and that it is no longer under the jurisdiction of the Railway Labor Act. It further argues that the Board has no jurisdiction in this case.

Award the Board concluded that it had jurisdiction over the Carrier. We will not ·~rii~'
 attempt to restate the full reasoning in this case, but will reiterate that Congress
 established the Adjustment Board to function as the sole arbiter of disputes
 growing out of labor agreements in the railroad industry and thus all ccr.trcversies
 Form 1 Award ho. 9204
 pie 3 Docket Iuo. 8881

arising over the interpretation of agreements in that industry must be submitted, to the Board. The Carrier concedes that it was a carrier at the time this claim arose. and that it arose out of an employment relationship. Nothing in the Act requires that the employment relationship exist throughout the entire process of administrative adjudication. Accordingly, the Board has concluded that, for the purpose of processing the instant claim, the Board has jurisdiction to resolve this dispute.

    Claim denied.


                            NATIOII,'Z RAILROAD !DJUSTIM"lT B0TD

                            By Order of Seccr.d Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

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-·-''fio,iemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 22nd day of July, 1982.