Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9544
SECOND DIVISION Docket No. 9759
2-C&NW-FO-'83
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( International Brotherhood of Firemen & Oilers
( System Council No. 15
Parties to Dispute: ( AFL-CIO
(
( Chicago and NorthWestern Transportation Company
Dispute: Claim of Employes:
1. That in violation of the current Agreement, Laborer John Foster, Chicago,
Illinois, was unfairly dismissed from service of the Chicago and North
Western Transportation Company, effective July 2, 1981.
2. That accordingly, the Carrier be ordered to make Mr. Foster whole by
restoring him to service with seniority rights, vacation rights, and all
other benefits that are a condition of employment, unimpaired, with
compensation for all lost time plus 6% annual interest; with reimbursement
of all losses sustained account loss of coverage under Health and Welfare
and Life Insurance Agreements during the time held out of service; and the
mark removed from his record.
Findings:
The Second Division of the AdjustmentmBoard, 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.
On May 27, 1981, Claimant was assigned to work on a fuel truck. It was his
duty to fuel various yard switch engines. At approximately 1:50 A.M.,,= that;-date,
the Carrier maintains that the Claimant was observed by two of its officers to be -
sitting in his truck sleeping. After an investigation on the property held on
June 29, 1981, the Carrier determined the Claimant to be guilty of sleeping on duty
and dismissed him from service.
The Organization contends that it was not possible for the Carrier's officers
to determine if the Claimant's eyes were shut because of the darkness inside the
cab of the truck. The Claimant also maintains that he was not able to hear the
Carrier's off'.1._;iLals approach the fuel truck because of the noise of moving trains.
The Board recognizes that often times proving that an employee was sleeping
is a most difficult task. However, two Carrier witnesses testified that they had
observed the Claimant to be asleep. Furthermore, the Claimant, by his testimony
Form 1
Page 2
Award No. 9544
Docket No. 9759
2-C&NW-FO-'83
admitted that he was sleeping on duty. In light of this admission, the claim is
without merit. Therefore, the penalty to be imposed upon the Claimant is the
responsibility of the Carrier unless the Board finds a clear due process violation.
We do not so find. The Claim is denied.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
os rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 6th day of July, 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division