Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10323
SECOND DIVISION Locket No. 10107
2-CMStP&P-FO-'85
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That in violation of the current Agreement, Laborer M. Fells, Chicago,
Illinois, was unfairly dismissed from service of the Chicago, Milwaukee,
St. Paul and Pacific Railroad Company, effective November 9, 1982.
2. That accordingly, the Carrier be ordered to make Mr. Fells whole by
restoring him to service with seniorty 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 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 employes 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.
Subsequent to a formal hearing, the Claimant was found guilty of sleeping
while on duty and was dismissed from the service.
The Carrier essentially relied upon the testimony of two of its officials to
find that the Claimant was asleep. It then considered the Claimant's past record
and concluded that discharge was warranted.
While the Board is not unmindful of the Organization's contentions in defense
of the Claimant, two officials testified they observed the Claimant lying on his
side in a sleeping posture. We have no basis to set aside the Carrier's reliance
upon this testimony to arrive at its finding of a Rule violation. Given this
conclusion, coupled with the Claimant's past record, which, under reasonable
standards, was
not
good, we will
not disturb the Carrier's
disposition, absent a
finding of arbitrary and capricious action on Carrier's part. After a review of
the record, this Board finds no evidence of arbitrary or capricious Carrier action.
Form 1 Award No.
10323
Page 2 Locket-No. 10107
2-CMStP&P-FO-'85
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
Attest: ..
Nancy ,7. .fiver - Executive Secretary
Dated at Chicago, 'Illinois, this 6th day of March 1985.