NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 21708

THIRD DIVISION Docket Number W-21779

Irwin M. Lieberman, Referee

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (St. Louis-San Francisco Railway Company

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

(1) The discipline of Trackman H. Richard for alleged 'violation of Rules 176, 177 and 189' was without just and sufficient cause and on the basis of unproven charges (System File B-11169).

(2) The claimant's personal record be cleared of the charges placed against him and reimbursement be made for all wage loss suffered all in accordance with Rule 1(d) of Article 1+.

OPINION OF BOARD: This is a discipline dispute in which Claimant was
dismissed for sleeping on the job and subsequently
reinstated. The dispute turns on the question of whether or not there
was sufficient evidence to support the Carrier's determination of guilt.

The record of the investigation reveals that Claimant denied he was asleep on the day in question, when he had an assignment to ride in a truck and watch the crossings out of the right side of the vehicle. He admitted that he was "scooted down" and his head was back. Two witnesses testified that he was asleep, one indicating that he was hunched down in the seat with his hat over his eyes. This conflict in the testimony is not within cur province to resolve, it must be accomplished by the hearing officer hearing officer credited the two company witnesses and not Claimant. In view of that determination, there was sufficient evidence to support Carrier's conclusion of Claimant's guilt. The prior record of Claimant was properly considered in determining the measure of discipline to be imposed. There is no basis for overturning Carrier's decision in this case. The Claim must be denied.

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;

Award Number 21708 Page 2

Docket Number MW-21779

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

That the Agreement was not violated.

A W A R D

Claim denied.

NATIONAL RAILROID ADJUSTMRHT BOARD

By Order of Third Division

ATTEST:

Executive Secretary

Dated at Chicago, Illinois, this 29th day of September 1977.

G_ 7 1e77

GOT J. eE P