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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9386
SECOND DIVISION Docket No. 9434
2-BN-EW-183
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
International Brotherhood of Electrical Workers
Parties to Dispute:
Burlington Northern Railroad Company
Dish ute : Claim of Employes:
1. That in violation of the current Agreement, Electrician Apprentice
Apprentice D. A. Cellarius was unjustly dismissed from service of the
Burlington Northern Inc., on August 13, 1980 following investigation
on July 22,
1980.
2. That the Burlington Northern Inc., further failed in their charged duty
to seek out, produce and develop all the facts pertaining to the
incident in question, and in addition, failed to meet their burden of
proof.
3. That accordingly, the Burlington Northern Inc., be ordered to restore
Mr. Cellarius to service with seniority unimpaired, compensate him for
all time lost, together with restoration of, or compensation for, lost:
vacation time, holidays, hospitalization benefits, railroad retirement:
benefits and all other benefits, rights and privileges to which he is
entitled under prevailing Schedules, Rules, Agreements, or Law. Claim
to begin on date Electrician Apprentice D. A. Cellarius was unjustly
dismissed from service and to continue until adjusted.
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 is this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act:
as approved June 21, 193+.
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 Claimant is an electrician apprentice at the Carrier's Alliance, Nebraska,
facility with six months seniority. He was charged with sleeping on duty, and
an investigation was held on July 22, 1]80. Following the investigation, he wars
dismissed from service effective August 13, 1980.
The Organization views the Carrier's action as arbitrary and an abuse of
managerial discretion because the charge is not supported by the evidence. This
position is, according to the Organization, upheld by the fact that Claimant was
not held out of service pending investigation as provided in Rule 35 (b). The
Form 1 Award No.
9386
Page
2
Docket No.
9434
2-BN-EW-183
Organization states that had the Carrier c·.msidered the infraction to be of a
serious nature, it would have withheld Claimant's services. The Organization
asserts that this Board has held that dismissal for a minor offense is excessive
discipline and often set aside.
The Claimant's dismissal by Carrier was for violation of Safety Rules
665
and
673
in that he was observed sitting in a slouched position with his eyes
closed in the cab of Unit
5938
at approximately
6:30
A.M. on July 10,
1980.
Rules
665
and
673
read as follows:
"Rule
665:
Employees must report for duty at the designated
time and place. They must be alert, attentive and devote
themselves exclusively to the Company's service while on
duty."
"Rule
673:
Employees must not sleep while on duty. Lying
doom or in a slouched position, with eyes closed or with
eyes covered or concealed will be considered as sleeping."
The record discloses that at about
6:30
A.M., July 10,
1980,
the mechanical
foreman crossed through the cab of Unit
5938
and observed the Claimant and an
electrician, who was in charge of him. Both men were awake. A few minutes later,,
the electrician came out of the cab. Approximately five or ten minutes later,
the mechanical foreman reentered the cab to check on the oil pressure and
observed Claimant reclining, his feet up near the engineer's side with his arms
folded and eye lids closed. After observing Claimant for a minute, the mechanical
foreman kicked the back of the cab seat. Claimant, at that point, acknowledged
the foreman's presence. The Claimant's testimony basically acknowledged these
facts except he denied he was sleeping or had his eyes closed. He also aclmowledged
he had been at Unit
5938
with the electrician for three hours and that he was
tired and not very alert.
This Board notes that Rule
673
alerts employes that lying down or assuming
a slouched position with eyes closed or covered will be considered sleeping.
The testimony of Claimant did not dispute the foreman's observations. The Hearing
Officer credited the testimony of the mechanical foreman. It is not our function
to question the propriety of his resolution of that credibility issue.
Lastly, the Board notes the Organization's contentions that the Carrier did
not consider the infraction to be of a serious nature in that Claimant was not
withheld from service. This is not considered to be a meritorious argument. This
short term employe placed himself in a position whereby he could be considered to
be sleeping. We shall not disturb the Carrier's action.
A W A R D
Claim denied.
F orm 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
s ripe Bras
Dated a Chicago, I;
Award No. 9386
Docket No.
9434
2-BN-Ew-'83
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division