PARTIES TO DISPUTE: Freight Handlers, Express and Station Employes



1. Carrier acted arbitrarily, capriciously and in a harsh and discriminatory meaner, violating Rule 38 and other rules of the Agreement, when it dismissed from the service of the Seaboard Coast Line Railroad Company, Crew Clerk Joe Lodsto, Jr. Tamps, llocida, lolly Investigation held at Tampa, Florida, December 141, 1978.





OPINION OF BOARD: Mr. Joseph Iudato, Jr., the Claimant, with a seniority
 date of May 26, 1969, was regularly assigned Crew Clerk,
 third trick, with hours 11:00 P.M. to 7:00 A.M., rest days Wednesday and
 Thursday, in the Division Office Building, Tampa, Fla. About 9:30 P.M. on
 October 20, 1978, while mocking an extra assignment as Crew Clerk, with
 assigned hours 3:00 P.M. to 11:00 P.M., was allegedly found asleep at his
 desk resulting in failure to call the Lakeland-Tencor turn, end, on the same
 evening allegedly imply marked up 7raiamm J. H. Scott on the Trainmen's
 Extra Board Instead of J. E. Scott.

 Claimant was charged with both offenses and originally instructed to attend two hearings but after several postponements the two separate charges were combined and heard in one hearing on December 14, 1978. Carrier by letter on January 2, 1979, dismissed Claimant from service.

 A copy of the transcript of the hearing was made a part of the record. The transcript shows Claimant was accorded the right of representation, to present witnessea accorded a fair and impartial investigation as required by the agreement.


The transcript clearly shows Claimant as being asleep on duty as charged. The evidence developed in the hearing also shows Trainman J. H. Scott as being marked up on the Trainmen's Extra Board rather than J. E. Scott, who was subsequently paid a pays pay for the improper mark-up.

 The Organization in defense contended that the Claimant was exhausted since he had worked four shifts beyond his regular assignment between the end of his regular shift, 7:00 A.M. on October 18, 1978, and his regular starting time 11:00 P.M. October 20, 1978, the day of the offenses, and for this reason he should have been given a mild reprimand. The Board finds that it is the employe's responsibility to inform his supervisor if he is not physically able to perform his duties, which Claimant failed to do. The testimony concerning the mark-up offense is confusing. Considerable argument was made that Claimant had marked-up the proper Scott and someone else had changed the middle initial. it would seem to this Board that one who claimed to have been in such an exhausted state could have very easily made such an error, and if admitted, would have very likely resulted in a simple reprimand. The evidence, however, was against the Claimant's contentions.

 The Carrier proved its charges. The Board must now determine if the punishment fits the crime. While Claimant was found guilty of both charges; the two offenses, considered together, were not so serious that the Carrier's operation was in jeopardy nor was the safety of any employe involved. Claimant has suffered enough. The offenses do not warrant permanent dismissal. For these reasons the Board finds that Claimant should be restored to service with all rights unimpaired but without back pay.

        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 Irbor Act as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the discipline imposed was excessive.


                      A W A R D


        Claim sustained in accordance with the opinion.

                    Award Number 23490

                    Docket Number CL-23492 Page 3


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest: al ~,
 Executive Secretary

 Dated at Chicago, Illinois, this 8th day of January 1982.

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