Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13949
Docket No. 13816
NRAB-00002-060030
(06-2-30)
The Second Division consisted of the regular members and in addition Referee
Many E.
Zusman
when award was rendered.
(International Association of Machinists and Aerospace
(Workers
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Dispute - Claim of Employee:
That the Union Pacific Railroad Company (hereinafter referred to
as Carrier or Company) violated the National Agreement dated
June 1, 1960, as amended, between the International Association of
Machinists and the Union Pacific Railroad Company when it
assessed Machinist Jack Wheeler (hereinafter referred to as
claimant) with a Level 2 discipline.
Relief Requested:
That the Union Pacific Railroad Company be ordered to expunge
the Level 2 discipline from the Claimant's personal record."
FINDINGS:
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.
Form 1 Award No. 13949
Page 2 Docket No. 13816
NRAB-00002-060030
(06-2-30)
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Notified by letter dated May 8, 2006, the Claimant attended an Investigation
June 7, 2006 to determine alleged violation of Rule 1.1.1, Sleeping. Subsequently,
the Claimant was notified June 16, 2006 that he had been found guilty as charged
and assessed a Level 2 discipline, which was progressively upgraded to Level 3.
There is contradictory testimony in this record. Electrician McGill denies
that the Claimant was reclined and a review of his testimony suggests that with dark
lens sun glasses and location, the testimony of Supervisor Powers is less than
credible. Supervisor Powers testifies that the Claimant was definitely sleeping, that,
"I went to the 2418 first and then I . . . walked around and I
observed Jack - - the back of his head actually. He was laid back in
the seat. When I walked into the locomotive, he was still reclined."
When the Claimant was asked if he was reclined when Supervisor Powers
approached him the Claimant testified, "No, sir, I was not".
The Board has carefully and fully reviewed the evidence of record. We find
no procedural errors. We find that the Carrier has proven guilt by the note and
testimony presented as to the circumstances of May 3, 2006. Supervisor Powers
wrote [original punctuation]:
"At around 11:00 I walked up on Unit UP2018, in DSS 4 track and
discovered Electrician Patrick McGill and Machinist Jack Wheeler
[Claimant] in cab of unit. Patrick was in the Engineers seat, looking
out south and Jack was in the Conductors seat asleep, reclined with
feat (sic) up in the jump seat.
I informed the both of them, I had work for them to do and gave
them instructions.
Form 1 Award No. 13949
Page 3 Docket No. 13816
NRAB-00002-060030
(06-2-30)
They never performed the task and I put Patrick on another job.
I went to lunch @ (sic) around 12:00, and around 12:30 went to look
for Jack Wheeler, I walked up yo (sic) UP 2018 thinking he may still
be on that unit.
He was not, as I looked around I saw him reclined and sleeping on
UP 6755. I observed him for a few minutes, and then walked around
the unit to the rear door and opened it and Jack jumped. Jack was
sluggish to respond. I informed Jack once again that I had work for
him to do.
I went to BSS 1 track with Jack and gave him the UP 756 to work."
The Board has reviewed the conflicting testimony and facts. In its appellate
role, the Board does not observe witness testimony and absent clear reason to
challenge the credibility decision of the Carrier, it must accept such decisions. After
full review, the credibility decision in this instance will not be overturned. As for
the evidentiary basis to support the charges, we find that the Carrier has provided
substantial evidence to prove guilt. In light of all of the circumstances associated
with this dispute, the claim must be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
Form 1 Award No. 13949
Page 4 Docket No. 13816
NRAB-00002-060030
(06-2-30)
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 15th day of July 2008.