NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20248
Frederick R. Blackwell, Referee
(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and
( Station Employes
PARTIES TO DISPUTE:
(George P. Baker, Richard C. Bond, and Jervis
( Langdon, Jr., Trustees of the Property of
( Penn Central Transportation Company, Debtor
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-7321) that:
(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A-
dismissal on V. V. Stachowski, IBM Clerk at EA Yard, East Buffalo, N.Y.,
Buffalo Division, Northeast Region.
(b) Claimant V. V. Stachowski's record be cleared of the
charges brought against him on February 1, 1972.
(c) Claimant V. V. Stachowski be restored to service with
seniority and all other rights unimpaired, and be compensated for wage
loss sustained during the period out of service, plus interest at 6% per
annum compounded daily.
OPINION OF BOARD: This is a discipline case in which the Claimant, while
serving as the regular incumbent of Position 211, IBM
Clerk, East Buffalo, N.Y. was charged with "sleeping on duty" at about
4:45 A.M., February 1, 1972. The Claimant was withheld from service pend
ing investigation; following a February 7, 1972 investigation and hearing,
he was found guilty as charged and dismissed from the Carrier's service.
The Employes attack the discipline on the grounds, inter alia,
that: (1) the Claimant was improperly held out of service pending investigation; (2) the Claimant's
the hearing officer improperly refused to call as a witness the Carrier
official who preferred the charges, (b) a Carrier official other than the
one who conducted the hearing resolved the conflicts in testimony and
rendered the decision, and in that (c) the Carrier improperly introduced
the Claimant's past record into the hearing transcript; (3) the Carrier's
hearing evidence does not prove the charge, in that the Claimant was not
"sleeping on duty", but rather was resting during his normally allotted
20-minute lunch break; and (4) the discipline imposed was not reasonably
related to the offense involved.
Award Number 20272 Page 2
Docket Number CL-20248
We concur with the Employes' point (1). We do not concur
with the Employes' points (2), (3), and (4).
The Agreement of the parties (Rule 6-A-l(a)) provides that an
employee may be held out of service pending investigation - "only if his
retention in service could be detrimental to himself, another person, or
the Company."
The record is barren of any evidence tending to show the existence of circumstances which, under
a withholding from service pending investigation. Indeed, the Trainmaster
stated that the Claimant was taken out of service "because of his past
discipline record." This reason is obviously not covered by the plain
wording of the rule and, consequently, we shall award compensation to
Claimant for the period of his pre-hearing suspension from service.
The due process issues raised by the Employes have been before
this Board in prior disputes and, as is well known, there is now a great
number of Board Awards on this general subject. Many of the Awards (e.g.,
Nos. 12090, 14031, 19935, 17901, and 13240) appear to be primarily based
on the notion that the due process requirements in a disciplinary proceeding in the railroad industr
requirements in a court of law. Other Awards (e.g., 14069, 10571, 14021,
18109, 17532, and 16347) appear to be primarily based on the contra notion
that such legal due process has no place at all in industrial due process,
and that due process in this industry flows exclusively from the parties'
agreement, either expressly or impliedly, and from custom and practice.
Each of these notions has something to recommend it. However, neither
notion seems entirely suitable to the appellate review function which
this Board carries out in considering a disciplinary action. Consequently,
we are not disposed to embrace one of the notions over the other, or to
select parts of each notion in an attempt to have the best combination of
the two. It suffices here to say that the term "fair and impartial investigation," which is commonly
means that the affected employe is entitled to a "fair" investigation (hearing) as such term is unde
context of the particular investigation under review. Thus where reasonable
minds are likely to agree that either actual or potential prejudice has
occurred in a particular case, and that such prejudice materially affects
the finding of guilt or the quantum of discipline, then the Carrier's disciplinary action should be
some matters that would amount to a due process violation in a court of law
would not necessarily constitute a due process violation in a disciplinary
action in this industry. And vice versa, for as was well stated by this
Board in Award No. 9517 (Elkouri):
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Docket Number CL-20248
" ..it must be remembered that probably no two
discipline cases are identical in all respects,
and that in discipline cases probably more than
in any other type, each case must be decided
largely on its own."
In applying the indicated criteria to the facts of the instant dispute,
we note that the witness that Carrier refused to call signed the notice
of charges, but he did not have any first hand knowledge of the incident
under investigation; the testimony does not contain complexities or other
elements which suggest that only the person who took the testimony could
make proper determinations thereon; and the Claimant's prior record, though
introduced at the hearing, does not appear to have formed part of the basis
for the Carrier's finding of guilt. We therefore conclude that these facts,
and the record as a whole, do not reflect a due process violation which
warrants modification of the Carrier's action.
With regard to the merits of the charge, the Trainmaster testified that the Claimant was sleepin
that he was resting during his lunch break. No other witnesses had direct
knowledge of the incident. In pertinent part the Trainmaster testified as
follows:
"A, I arrived at EA Yard office at approximately 4:35 A.M.,
Feb. 1st, 1972. I observed everyone in the office working.
I then noticed only two people in the IBM Room. I asked the
Chief Clerk who the third person was and where he was. The
Chief Clerk said that it was Valentine Stachowski and that
he thought that he was in the Diccs Room. I went into the
Diccs Room and found no one. I then told the Chief Clerk
to look in the Men's Room. He did this and Stachowski was
not in there. I then went downstairs and found Stachowaki
sleeping on a bench with his head resting on an IBM Card
Box in the rear of the cellar. I stood next, to Stachowaki
for five minutes and listened to him snoring heavily. I
then shined my flashlight on him and told him to wake up.
At first he did not respond. I called to him again to wake
up and he then woke up and got up off the bench and almost
fell to the floor because he was not quite awake. When he
came to his senses I asked him what he was doing. He said
he was taking a little lunch break. I said an employee on
duty has no right to sleep at any time. He said he had a
headache. I said 'If he was sick he should have gone home
because I do not condone anyone sleeping while on duty.$ I
then informed Stachowski that he was out of service for sleeping while on duty and he would be notif
place of the investigation. He argued that he had a right to
Award Number 20272 Page 4
Docket Number CL-20248
"sleep while he was into lunch. I then told him again
that he was out of service and would be notified as to
the time and place of the investigation and that he was
to leave the Penn Central property immediately. We went
upstairs and he went back into the IBM Room. He stayed
in there about five minutes. I then went into the IBM
Room and told him to leave the Penn Central property. He
said I have been working all night. See my last transmission was made at 4:25 AM and I was into dinn
I didn't care if he was into dinner or not, no one has a
right to sleep while on duty. He then walked over to the
chief clerk and said 'Don't forget I told you I was going
to lunch'. Stachowski then left. I then ordered the
Chief Clerk to mark Valentine Stachowski off at 4:50 AM
on the timeslip because of being out of service."
The following version of the incident was given by the Claimant:
"q. Were you sleeping in the cellar of EA Yard Office
at approximately 4:45
A.M.
Feb. 1, 1972?
A. No. I was not. I was resting and that was my lunch
period. It is not a cellar, it is our locker room
and lunch room.
Q. At about this time were you lying on a bench with
your head resting on an IBM Card Box with your eyes
closed and snoring?
A. I had my head on something, I don't know what it was
and if I was sleeping I couldn't very well tell that
I was snoring, however, I was resting and I was disturbed on my lunch period.
Q. You said if you were sleeping you wouldn't know if
you were snoring or not. Do you know if you were
snoring?
A. No. I wasn't snoring because I wasn't sleeping.
Q. Did Mr. Forcione wake you up?
A. No. Mr. Forcione shone the light in my face, which
disturbed me because it blinded me.
Q. Did Mr. Forcione call to you?
.i
Award Number 20272 Page 5
Docket Number CL-20248
. Yes, he called me by name, Stachowski.
Q. How many times did he call you before you got off
the bench?
A. Once.
Q. What took place after you got off the bench?
A. We walked over to the lit part area of the lunch
room and Mr. Forcione turned around and said you
know what out of service means and I said yes, I
do. He said, Well, you are out of service. He
said follow me upstairs. Nothing more was said
downstairs until we got upstairs and Mr. Forcione
talked to Chief Clerk Mr. Bill Rieman.
Q. Did you inquire as to why Mr. Forcione was taking
you out of service?
A. Yes, I did inquire and I objected to his reasons.
Q. What were Mr. Forcione's reasons?
A. Mr. Forcione said 'Nobody lays down while they are
on duty'.
Q. Was the word sleep ever mentioned in your conversation with Mr. Forcione?
A. Yes, Mr. Forcione did mention the word sleep to which
I objected.
Q. In what concept did he use the word sleep that you
objected to?
A. When we were upstairs he said 'You were sleeping'.
That is when I objected to the word sleep.
Q. What was your reply to Mr. Forcione's statement?
A. I wasn't sleeping, I am into lunch."
Award Number 20272 Page 6
Docket Number CL-20248
We conclude that the above testimony, and the whole record,
provides substantial evidence in support of Carrier's action. In a
comprehensive, detailed description of what he had observed and heard,
the Carrier witness testified that the Claimant was lying on a bench,
with head resting on a box, asleep in an unlit part of the lunch room.
The Claimant admitted that he was lying down in an unlit part of the
room. He said he "had his head on something" and "was resting" and,
since this describes a position which gives the appearance of being
asleep, the Claimant has only himself to blame when the appearance is
taken to be the fact. But even if we assume that the Claimant was not
asleep, but rather resting on his lunch break, discipline would still
be warranted because prior Awards involving this same property have
held that the 20-minute paid lunch break is for "the specified purpose
of eating rather than the general purpose of relaxation or rest."
Award No. 46, Special Board of Adjustment No. 589; also Fourth Division
Award No. 2882. We also note that we have considered, but find not
apropos, the Employes' argument and Awards concerning the questionable
character of a disciplinary action which is based upon the testimony
of a single witness. Similarly, since the Claimant's record shows two
prior instances of sleeping on duty within the two years preceding this
incident, we conclude that there is no basis for saying the discipline
was excessive. We shall deny the claim, except that compensation for
the suspension period is allowed without interest.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence,finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute
are respectively Carrier and Employes within the meaning of the Railway
Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
The Agreement was violated by an improper withholding from
service pending investigation.
A W A R D
Compensation for the pre-hearing suspension period is allowed
without interest, but otherwise the claim is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
19 AW,
&44
040d
Executive Secretary
Dated at Chicago, Illinois, this 14th day of June 1974.