Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13362
Docket No. 13252
99-2-97-2-18
The Second Division consisted of the regular members and in addition Referee
Robert Richter when award was rendered.
(International Association of Machinists and
( Aerospace Workers
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railway
( Company (former Atchison, Topeka and Santa Fe
( Railway Company)
STATEMENT OF CLAIM:
"That the Atchison, Topeka and Santa Fe Railway Company
(hereinafter referred to as the `Carrier') violated Rule 40 of the
Controlling Agreement, Form 2642-A Std., as amended, between the
Atchison, Topeka and Santa Fe Railway Company and the its Employees
as represented by the International Association of Machinists and
Aerospace Workers (hereinafter referred to as the `Organization') when
it wrongfully and unjustly suspended for 30 days Chicago, Illinois
Machinist D.M. Grandolfo (hereinafter referred to as the `Claimant') cited
in violation of Carrier Rules 1.10 and 1.13 for allegedly reading a
newspaper while on duty April 4, 1996 at approximately 8:30 p.m.
Accordingly, we request that for this improper discipline, he be
compensated for all lost time and benefits as provided for in Rule 40 (i) of
the Controlling Agreement, as amended. Additionally, we request that all
records and reference to this matter be removed from his personal
record."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 13362
Page 2 Docket No. 13252
99-2-97-2-18
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.
On May 30, 1996 Claimant was suspended by the Carrier for a period
of
30 days
as a result
of
an Investigation held on May 7, 1996. Carrier found that Claimant had
violated Rules 1.10 and 1.13 when he was observed reading a newspaper while on duty
on April 4, 1996.
A review of the record shows that Claimant denies reading the paper. The
Supervisor stated the opposite, going even further by identifying the article in the paper
that the Claimant was reading. Such was not contested.
The Hearing Officer who has the opportunity to watch the demeanor of the
witnesses is the best determiner of the facts. Therefore, the Carrier met its burden
of
proving the that the Claimant violated Rule 1.10 which prohibits the reading
of
newspapers while on duty. However, it failed to show how Rule 1.13 was violated.
Claimant has over three years
of
service with no previous discipline on the record.
Based on the facts in this case, the Carrier was unjustly harsh. This Board will reduce
the discipline assessed to a formal reprimand.
AWARD
Claim sustained in accordance with the Findings.
Form 1 Award No. 13362
Page 3 Docket No. 13252
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ORDER
This Board, after consideration ofthe dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 23rd day of February 1999.