Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11775
SECOND DIVISION Docket No. 11565
89-2-88-2-79
The Second Division consisted of the regular members and in
addition Referee Joseph S. Cannavo when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM:
1. Under the current agreement Electrician Dennis Anderson, Locomotive Department, Duluth Missabe & Iron Range Railway Company was unjustly
suspended from Carrier service beginning and including May 4, 1987 through and
including May 23, 1987.
2. Therefore, accordingly Electrician Dennis Anderson be made whole,
restored to Carrier's service with seniority rights, holidays, sick leave benefits and all other benefits that are a condition of employment unimpaired and
compensated for all lost time plus ten percent (10X) annual interest on all
such lost wages, also reimbursement for all losses sustained on account of
loss of coverage under health and welfare and life insurance agreements during
the time held out of service, and that all charges, correspondence and transcripts regarding this alleged incident be removed from Electrician Dennis
Anderson's personnel file.
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.
On March 26, 1987, the Claimant was given notice of an Investigation
for an alleged incident that occurred on March 25, 1987. The charge letter
states:
"Charges brought against you are General Rule Number
8, DM&IR Rules of the Locomotive Department and other
rules concerning lack of productivity, and sleeping
during work hours, and/or other violations which
may be discovered during the above mentioned formal
investigation."
Form 1 Award No. 11775
Page 2 Docket No. 11565
89-2-88-2-79
On April 9, 1987, a formal Investigation was held and the Claimant
was issued a 20 calendar day Notice of Suspension dated April 24, 1987.
The Organization claims that the Claimant was unjustly disciplined in
violation of the Current Agreement, in particular, but not limited to Rule 28
which requires that the charges be specific. The organization further claims
the Carrier did not meet its burden of proof and that Carrier used the Claimant as an example because he is a union officer.
The Carrier alleges that after trying to locate the Claimant by loud
speaker several times, the Supervisor found the Claimant sleeping in a cab of
a locomotive in violation of General Rule 8 which reads:
"Employees must report for duty at the designated
time and place. They must be alert, attentive
and devote themselves exclusively to the company's
service while on duty. They must not absent themselves from duty, exchange duties with, or substitute others in their place without proper authority."
The Carrier further argues that the Claimant was afforded due process
and that substantial evidence supported the charge of sleeping.
In reviewing the charges against the Claimant, the Board notes that
while they may appear to be open-ended, the specific charge of sleeping was _
the only one on which evidence was presented. Further, based on the entire
record, the Claimant was prepared to answer those charges.
The Board acknowledges that it is well established that the reconciliation of directly contradictory testimony and the establishment of witnesses
credibility is properly the function of the Hearing Officer and not the Board
who reviews the appeals. A Hearing Officer's decision will remain undisturbed
provided the evidence and the testimony that he credits and relies upon is
substantial. A review of the evidence in the instant case relied upon by the
Hearing Officer is clearly not substantial. The uncorroborated, contradictary
and less than certain testimony of the Carrier's only witness does not establish that the Claimant was asleep as charged.
Further, there is nothing in the record to indicate that the Claimant
has a propensity to sleep on the job or engage in other rule violations.
Based on the foregoing, the Board will award the Claimant will be
made whole for all lost wages and benefits incurred during the 20 calendar day
suspension.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 11775
Page 3 Docket No. 11565
89-2-88-2-79
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J ~er - Executive Secretary
Dated at Chicago, Illinois, this 11th day of October 1989.