Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9440
SECOND DITJISION Docket No.
9079
2-c&Nw-CM-'
83
The Second Division consisted of the regular members and in
addition Referee John B. haRocco when award was rendered.
( Brotherhocs3 Railway Carmen of the United States
Parties to Dispute: ( and Canada
~ Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Car Welder Albert Reed was unjustly assessed sixty (60) days suspension
plus an additional thirty
(30)
days which had been previously deferred;,
on August 11,
1979.
2. Car Welder Albert Reed was erroneously charged with sleeping while on
duty on July 23,
1979.
3.
That the Chicago and North Western Transportation Company be ordered to
make Car Welder Albert Reed whole and compensate him for all time lost
dating from August 11,
1979,
through November
g, 1979,
plus 611~3 annual
interest on all such wage loss, as per Rule
35·
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, a freight car welder, was suspended for sixty days for allegedly
sleeping
while on
duty on July 23,
1979
at
1:50
p.m. As a result of this discipline,
Claimant was also required to serve a previously deferred thirty day suspension.
At the investigation conducted on August
7, 1979,
there were direct conflicts
between the testimony offered by Claimant and the events as related by the Car
Foreman. Claimant testified that he was assigned to cut the bay on a caboose,
but he also had to burn inside the caboose since the Carrier had not provided a
carpenter. When smoke and fumes pervaded the caboose, he had to sit down until
the smoke dissipated. In addition, Claimant asserted he was .gearing his safety
glasses and his protective shield so it would have been impossible for his
supervisor to ascertain whether or not his eyes were closed. The Car Foreman, on
the other hand, emphasized that Claimant's assigned project (to cut the caboose
bay did not include any inside work. The Foreman observed Claimant, through the
caboose windows and then from inside the caboose, sitting in a chair with his
Form 1
Page 2
Award No. 9440
Docket No.
9079
2-c&Nw-CM-'83
head nodded back and with his eyes closed. The Foreman accused Claimant of
sleeping, however, Claimant denies the accusation was made at that time. A few
minutes later, the Car Foreman and Assistant Car Foreman saw Claimant seated in
the same chair though he was not sleeping.
This Board cannot resolve the significant discrepancies between the Car
Foreman's testimony and Claimant's assertions. The Carrier hearing officer could
reasonably attach more weight to the Car Foreman's version of the July 23,
1979
incident than to CIa',mant's assertions. According to the Car Foreman, Claimant
exhibited characteristics associated with sleeping. Claimant's contention that
he sat down to wait for smoke to clear is implausible because he could have
avoided the foul and smokey air simply by stepping outside the caboose. Therefore,
we must concltrie that there is substantial evidence in the record to prove that
Claimant was sleeping while on duty.
During his short tenure with the Carrier, Claimant has compiled a lengthy
disciplinary record. He has been repeatedly reprimanded and suspended for absenteeism and safety violations. Given his poor prior record, we must uphold the
suspension assessed in this case.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment
Board
B·
,,-01rc-T--Amarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 13th day of April, 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division