THIRD DIVISION Locket Number MW-24964


                    Eckehard Muessig, Referee


                (Brotherhood of Maintenance of Way 11nployes


PARTIES TO DISPUTE:
                (Burlington Northern Railroad Company (former ( St. Louis-San Franicsco Railway Company


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Machine Operator B. W. Ellis "for allegedly being asleep while operating Ballast Regulator on System Gang S-5' was excessive and unwarranted (System File B-1689-11MWC 82-6-9C).
(2) The claimant shall be reinstated with seniority and all other rights unimpaired and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: The Claimant, a Machine Operator, was charged with being asleep
 while operating a Ballast Regulator. After an investigative
 hearing, the Claimant was dismissed from Carrier's service.
The Organization raises a threshold issue, noting that the Carrier, as. a basis for its dismissal of the Claimant, cited violation of three of its rules. It holds that only one of these rules relates to the specific charge of sleeping levied against the Claimant. Therefore, the use of the other two rules by the Carrier was violative of Rule 91 (a) which reads:
        ·(a) Mnployees disciplined or dismissed will be advised by the precise charge of such action, in writing if requested.'


On the merits of the issue before us, the Organization essentially holds that the penalty of dismissal was excessive.
With respect to the procedural issue, in that the Carrier cited three rules (Rule 700, 702 and 569), the Board finds the Carrier's construction of these rules, under the circumstances of record, to be reasonable. Moreover, the notice of investigation precisely described the nature of the alleged offense to be investigated. It is apparent by the wording of this notice and the transcript of the hearing that the Claimant was aware of the charge and was not misled as to the specific nature of it.
The Board finds that the evidence supports the charge. The discipline assessed, particularly when viewed in light of the Claimant's previous work record, which included two prior dismissals, was not excesssive.
            Award Number 24691 Page 2

                      Locket Number MW-24964


        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 nmployes 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 inovlved herein; and
        That the Agreement was not violated.


                          A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
      Nancy J. opff - Executive Secretary


Dated at Chicago, Illinois, this 24th day of February, 1984
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