Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9868
SECOND DIVISION Locket NO. 9720
2-C&NW-FO-'84
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered.
( International Brotherhood
of Firemen and Oilers
( System Council No. 15, AFL-CIO
Parties to Dispute:
( Chicago and Northwestern Transportation Company
Dispute: Claim of Employes:
1. That in violation of the current Agreement, Laborer Amon Davis, Laborer,
Chicago, Illinois, was unfairly dismissed from service of the Chicago
Northwestern Transportation Company effective July 2, 1981.
2. That accordingly, the Carrier be ordered to make Mr. Davis 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
reimsbursement for ale: losses sustained account loss o f 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 ,'Idjustment 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 employes within the meaning of the Railway Labor Act
as approved June 21 , 1934.
This Division of the Ad justrzent Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant was a Laborer working as a helper on a fuel truck for the Carrier
at its Proviso Diesel Shop. He had been so employed for slightly more than one
year at the time of the incident.
On May 27, 1981 the Claimant- and a driver were assigned to work on a fuel
truck. The Carrier maintains tj~at the Trainmaster observed the truck standing
idle between 1:30 a. m. -1:45 a. m. When the Trainmaster and the Diesel Foreman
went to investigate, the Carrier charges that they observed both the Driver and
the Claimant in a slouched posit=ion with their eyes closed, and they only woke up
after the two supervisors started banging on the windows.
As a result of this incident, following an investigation held on June 29, 1981,
both employees were charged as follows:
Form 1 Award No. 9868
Page 2 Docket No. 9720
2-C&NW-FO-'84
"Your responsibility for sleeping while on duty as fuel trucker
and truck driver helper respectively at the East Five (5) Yard
at approximately 1:50 a.m. May 27, 1981."
The Organization challenges the testimony of the Carrier's witnesses and
maintains they could not determine if the Claimant's eyes were shut since
the area was not well lit. Yet both supervisors testified they stood on the
running boards on each side of the truck for 2-3 minutes and observed both men
"with no motion of any kind from the driver or the helper." The Claimant
himself, when asked at the hearing i f he was sleeping in the fuel truck, testified,
"Yes, I believe 1 was!" Given such an admission against interest, the claim
of a violation of the Agreement can not be sustained.
Further the Claimant in his slightly more than one (1) year of service,
had apparently been previously disciplined on three (3) separate occasions.
Based upon the entire record', the discipline is not deemed excessive and the
Board has no basis to substitute its judgment for that of the Carrier.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ATTEST:
/2~4e
Nancy ' ever - Executive Secretary
Dated at Chicago, Illinois, this 18th day of April, 1984