Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9474
SECOND DIVISION Docket No.
9528
2-BN-EW-183
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( Internatirn al Brotherhood of Electrical Workers
Parties to Dispute:
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That in violation of the current Agreement, Electrician E. Quick was
unjustly withheld and later dismissed from service of the Burlington
Northern Inc., following investigations held on dates of October
3
and
7, 1980.
2.
That the Burlington Northern Inc., failed to provide accurate transcripts
on either the October
3,
or October
7, 1980
investigations giving accurate
account of what transpired in those hearings.
3.
That accordingly, the Burlington Northern Inc., be ordered to make the
aforementioned E. Quick whole by restoring him to its service with
seniority rights unimpaired, plus compensation for all wages lost and
restoration of, or compensation for, any lost vacation 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 E. Quick was unjustly withheld
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 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 was dismissed from the service of the Carrier following a formal
investigation. The Claimant had been notified that the investigation scheduled
for October
3, 1980,
was to be held with respect to allegations that Claimant had
been found sleeping on duty. In a subsequent notice, Claimant was informed that
another investigation was to be held on October
7, 1980,
with respect to allegations of
"...
your alleged insubordination by your failure to fuel and sand Unit
1566,
and failure to comply with instruction from proper authority while assigned
Form 1 Award No. 9474
Page 2 Docleet No9528
2-BN-EW-183
With respect to the first investigation, two of the Carrier's supervisory
personnel had observed Claimant sleeping on duty on September 23, 1980. At this
investigation, and in addition to the testimony of the Carrier's witnesses, the
Claimant admitted that he had "dozed off".
With respect to the second investigation, on September 18, 1980, Carrier's
Mechanical Foreman found a Locomotive Service and Inspection Sheet on his desk,
signed by the Claimant, and indicating that Claimant had sanded and fueled Engine
1566.
When the train crew arrived and prepared to depart from the terminal, the
engineer found it almost out of sand and low on fuel. At this investigation,
and in addition to Carrier's witnesses, claimant admitted that he did not
fuel and sand the engine.
The
Organization claims that the dismissal of the Claimant was arbitrary,
capricious and an abuse of managerial discretion. The Organization further asserts,
that due to inaccuracies in the transcripts of the two investigations, the
investigations were not fair and impartial.
We cannot agree with the contentions of the Claimant. First, with regard to
the claim that the transcripts were not accurate we believe that Fourth Division
Award
3306
is relevant to our consideration:
"It is also charged that the transcript of the investigation
is incomplete and inaccurate. To some extent this is true.
The record of the proceedings was not taken by an experienced shorthand court reporter. But how inaccurate is it?
Are the essential facts relating to the Claimant's alleged
responsibility sufficiently reported so that a reasonable
conclusion can be reached?
None of the alleged inaccuracies and omissions contained
in
Petitioner's submission are verifiable. There is no
evidence which supports the veracity of the alleged admissions and omissions. They are no better than the record
itself.
An
admitted insufficient transcript does not
necessarily invalidate the entire proceedings." (Referee
Dolnick, Fourth Division, 3306)
We feel that the above is pertinent to the instant dispute. Further, we find
that the Claimant's own admission of guilt as to both of the charges alleged
is extremely important to this case. We must assume that Claimant would not make
a statement against his interest lightly. Therefore, we must take his statement as
an admission of the charges brought. This admission contradicts Claimant's
assertion that he failed to receive a fair and impartial hearing and that the
transcript inaccuracies resulted in an arbitrary or capricious hearing.
This Board has consistently held that a determination of discipline based
upon substantial evidence adduced at a fair and impartial hearing will not be
disturbed absent a finding of arbitrary or capricious behavior on the part of
the hearing officer. We find none in this matter.
Form I
Page
3
Award No. 9474
Docket No. 9528
2-BN-EW-183
As to the discipline imposed in this case, we must sustain the finding of
the Carrier. Sleeping is a serious offense, a violation of the agreement worthy
of dismissal. This allegation alone, if proven, would warrant the penalty imposed
in the instant dispute. Therefore, we have no other alternative but to uphold
the position of the Carrier.
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 / _
o marie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 4th day of May, 1983