The Second Division consisted of the regular members and in addition Referee Margo R. Newman when award was rendered.
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.
As a result of a formal Investigation held on May 18, 1993, Claimant was notified that he was found guilty of being outside his regular assigned work area and sleeping while on duty, at approximately 4:15 P.M. on May 9, 1993. As a result, he was assessed a 30 calendar day suspension. Form 1 Award No. 13077
Claimant, a Laborer with :-2 years seniority at the time, was working at the Cumberland Locomoti°re Facility in Cumberland, Maryland, on the 3:00 P.M. to 11:00 P.M. shift on May 9 ':993. A review of the record reveals that Carrier's charges are based upon Supervisor Derryberry's testimony in the Investigation that he discovered Claimant in an unlit, material supply shanty, away from his assigned work area at approximately 4:15 P.M. on May 9, 1993, sitting behind the desk with his head back and eyes closed for several minutes. He noted that Claimant's head was moving back and forward down to his chest and then back again, and testified that he was certain that Claimant was sleeping and then awoke when he entered the room. It is undisputed that the Claimant offered to work through his break --ime. Derryberry recalled Claimant indicating that he had come :nto the shant.', to call and check on his babysitter. Derryberry admitted not wearing a watch at the time, but -ndicated that he discovered Claimant sometime between 4:15 P.M. and 4:30 P. M.
Claimant was the only Laborer on the shift, and was first assigned to the car yard and then to do a vee on an engine outside. Claimant recalled going to the material shanty to get a drink of water and to have the Machinist Helper bring him a hopper so that he could shovel the pit. It is undisputed that on May 9, 1993 it was 94 degrees with high humidity. Both Claimant and Machinist Helper Smith testified that he arrived at the shanty at 5:20 P.M. and asked both for the hopper and some water, which he placed on his forehead and neck to cool down and drank. Claimant admitted sitting down and having a long drink from the water bottle, putting his head back to sooth the pain in his head, and perhaps closing his eyes for a minute; he denied sleeping. Claimant recalled Derryberry coming into the shanty, accusing him of sleeping and denying it. Claimant stated that he was disoriented, but did not tell Derryberry or any Supervisor about feeling hot or dizzy. Carrier's Facility Heat Stress Action Plan was placed into evidence indicating the appropriateness of taking breaks and drinking lots of water on hot days. The record reflects that this is a selfmanagement area, where employees are often required to get their own materials or choose their assignments.
Machinist Helper Smith was certain that Claimant came into the shanty for materials at 5:20 P.M. and that he had not been there earlier that afternoon. He recalled noticing the time on the clock because Claimant had indicated that, because it was close to break time (5:30 P.M.) he could bring the hopper after break. Smith testified that he left Claimant in the shanty with a bottle of water and was gone for less than five minutes, and Claimant was not inside when he returned. Smith stated that he met Claimant at his work area with the hopper and was informed that Derryberry had accused him of sleeping in the shanty. Form 1 Award No. 13077
While long established precedent reveals that this Board cannot set itself up as trier of fact when confronted with conflicting testimony and may not resolve credibility disputes, (Second Division Awards 7542, 8280, 8566) it also recognizes that it is the responsibility of the Carrier to adduce substantial evidence in support of any discipline imposed. (Third Division Awards 25411, 11626.) Under the circumstances of this case, we are unable to conclude that Carrier met its burden of presenting substantial evidence to prove that claimant was improperly away from his work area at 4:15 P.M. on May 9, 1993. This is especially true in light of the clear discrepancy between when Derryberry said he saw Claimant in the shanty and when both Smith and Claimant were certain he was present. Despite Claimant's assertion that the log book would prove that he was working on the vee or in the car yard at the time, Carrier failed to produce this record. Further, Derryberry admitted that Claimant returned from the car yard around 4:00 P.M. and that he was assigned to do the vee thereafter. Derryberry also admitted not being sure about the exact time and not wearing a watch, while Smith explained that he checked the clock in the shanty when Claimant said it was almost break time. It is also clear that a trip to the material shanty would not be outside of Claimant's normal work area if he was seeking water or materials necessary to perform his job.
However, while there is insufficient evidence to support the contention that Claimant was away from his work area at 4:15 P.M. on the day in question, there is no dispute that Claimant was sitting in the shanty prior to break time with his head back and his eyes closed when his Supervisor entered, or that he offered to work through his break. On the basis of these admitted facts, the Board does not deem it appropriate to substitute its judgment for that of the Hearing Officer who found that Claimant was sleeping; while on duty. Public Law Board No. 5241, Award 10; Second Division Award 6372. Thus, we find substantial evidence in the record to support that aspect of the charge.
With respect to the issue of the arbitrariness of the penalty imposed, because only part of the charge was substantiated, albeit: the more serious aspect, and there is nothing in the record indicating what part of the penalty was attributable to which part of the charge, we believe it proper under these limited circumstances, to reduce the penalty to a 20 calendar day suspension. This action does not undermine the Carrier's right to impose a 30 day suspension or a higher penalty for a sleeping on duty offense in otherwise appropriate cases. Forth 1 Award No. 13077
Finally, we find ::o Pule =n the Agreement supporting the Organizations request =cr interest on time lost. ;Second Division Awards 5672, 11914, 0362, 765, 7064.) Thus, we direct that the suspension herein. be reduced to -0 calendar days and that the Claimant be compensated for -ime lost during the other 10 calendar day period.
This Board, after :-onsideration of the dispute identified above, hereby orders -han award favorable to the Claimant(s) be made. The Carrier :s ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.