The Second Division consisted of the regular members and in addition Referee Elizabeth C. Wesman when award was rendered.
(International Association of Machinists ( and Aerospace Workers PARTIES TO DISPUTE:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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. Form 1 Award No. 12794
Until his dismissal, Claimant held the position of Machinist at Carrier's Argentine Maintenance and Inspection Terminal in Kansas City, Kansas. On February 4, 1990, at approximately 6:20 PM, Claimant slipped and fell while descending the stairs from the locker room and dislocated his shoulder. Following corrective surgery and physical therapy, Claimant returned to work on November 19, 1991, on a light duty basis. The light duty agreement was made between Claimant and the Director of Locomotive Maintenance and Inspection Terminal, in the presence of Claimant's Local Chairman.
By letter of December 19, 1991, Claimant was notified as follows:
The investigation was initially postponed, and was ultimately held on January 3, 1992. Following the investigation, Claimant was notified by letter of January 24, 1992 of his dismissal from service. His dismissal was appealed by the Employees and that appeal was denied. The claim was then processed up to and including the highest authorized Carrier officer. After a conference on the property, the matter remained unresolved.
The Carrier maintains that it has long been a tradition of this Board to uphold the ultimate penalty of dismissal in cases of "sleeping on the job," and on that point it is entirely correct. In support of its position, Carrier cites several awards on this and other Boards. However, before assessing such a penalty, Carrier must first meet its burden of persuasion regarding the employee's actual commission of the misdeed. Form 1 Award No. 12794
The Employees have pointed out that there is only one witness to Claimant's alleged "sleeping." Moreover, unlike other cases of "sleeping on the job," Carrier did not withhold Claimant from duty pending investigation. Rather, there was more than a month and a half between the incident giving rise to this case and Claimant's actual dismissal. In addition, the Employees point out that it is unrefuted on the record that Claimant's supervisor was aware of the exercise regimen Claimant was engaged in, and had given no objection or direction concerning Claimant's performing of those exercises. In addition, there is confirming documentary evidence from his physician and physical therapist. .Finally, the Employees point to numerous letters of commendation received by Claimant indicating his value as an employee.
At the heart of this case is the matter of burden of persuasion. In this instance the Carrier has not met that burden. Most adverse to its position is Carrier's own behavior in this case. Rather than disciplining Claimant on the spot for his alleged sleeping behavior, Carrier had arranged for Claimant to perform his exercises in the supervisor's office. This sends at best a mixed message to Claimant regarding his behavior. Moreover, Carrier did not notify Claimant of the serious charge against him until a full week after the incident occurred. If Claimant's supervisor believed Claimant had been sleeping, Carrier normally would have immediately removed him from service pending investigation (as in Third Division Award 28004).
Nowhere on the record before us did Claimant admit to being asleep, either prior to or during the investigatory hearing (as in Second Division Award 12489, and Third Division Award 29333). Moreover, there is no evidence on the record that Claimant was attempting to hide his behavior (as in Second Division Award 12155). On the contrary he was stretched out in an area where he was likely to be seen by fellow employees and supervisors. In summary, a careful weighing of all the evidence before the Board leads inexorably to the conclusion that Carrier has failed to meet its burden of proof.
Carrier is correct, however, that Claimant is entitled only to the remedy provided in Rule 40(i). Rule 40(i) reads as follows: Form 1 Award No. 12794