Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10498
SECOND DIVISION Docket No. 10422
2-NRPC-MA-'85
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That the National Railroad Passenger Corporation (Amtrak) be
ordered to restore Machinist Joseph Szydlo to service and
compensate him for all pay lost up to time of restoration to
service at the prevailing Machinists' rate of pay.
2. That Machinist J. Szydlo be compensated for all insurance benefits,
vacation benefits, holiday benefits and any other benefits that may
have accrued and were lost in this period and otherwise made whole
for all losses in accord with the prevailing agreement dated
September 1, 1977, as subsequently amended.
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 were given due notice of hearing thereon.
J. Szydlo, Claimant, was discharged from the service of the Carrier
after the Investigating Officer had found that the charges against him had
been proved. Based on this offense and the past record of Claimant, the
Investigating Officer considered termination justified.
Several Carrier witnesses testified that Claimant could not be found
between 11:30 p. m. and 1:00 a. m. These witnesses testified that many paging
calls had been made over the shop loudspeaker with no results. One witness
testified:
Form 1 Award No. 10498
Page 2 Docket No. 10422
2-NRPC-MA- ' 85
Mr. Loumakis came up to the engineer's side of the locomotive; I
carne up the fireman's side. I arrived first. Mr. Loumakis was
just getting into the locomotive.
I called Mr. Szydlo's name several times. I received no response.
At that point, Mr. Loumakis had made entrance into the locomotive.
1 went over and I tapped the back of the engineer's side chair;
received no response.
I took hold of Mr. Szydlo's shoulder and shook him, and he started
to stir.
He was snoring during this time and appeared to be very groggy
and not his usual self.
The testimony of Mr. Loumakis was consistent with this version of the facts.
Claimant's testimony was that he was suffering from a headache because
the shop was filled with smoke. He then took an aspirin and took refuge in
the cab of a locomotive. He testified that he had not been asleep during
this time and was fully awake when discovered by the other witnesses.
Carrier witnesses testified that at least three of the shop doors were open
and that the fans were working and that smoke in the shop was minimal.
In a case as this when all the evidence is testimonial, the Investigating
Officer must be the one to assess credibility. Only he had the opportunity
to observe the demeanor of the witnesses, to listen to the tenor of their
voices, and to assess one against the other. An appellate board which has not
had the opportunity to utilize these time worn techniques is justified in
overturning the credibility findings when there is evidence in the record
that would tend to discredit the findings of the Investigating Officer or
when there is evidence in the record that demonstrates that this Officer was
prejudiced toward Claimant. There is nothing in this record that would allow
the Board to overturn the credibility findings. Testimony supports the
findings; the Claimant was unable to explain why, if he was awake, he did not
answer any of the numerous paging calls that were announced.
Sleeping on duty has often been held sufficient grounds for dismissal in
and of itself. However, the past disciplinary record of Claimant reveals
that he has been disciplined on five separate occasions. This incidence
obviously motivated the Carrier to rid itself of a performer whose conduct
was not meeting its required standards.
low
Form 1 Award No. 10498
Page 3 Docket No. 10422
2-NRPC-MA-185
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
NancyGOooever - J
ZZ
Dated at Chicago, Illinois, this 7th day of August 1985.