NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25300
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackman L. A. Hendricks for alleged violation
of "Rule 4143· was without just and sufficient cause (System Docket 290D).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, his record cleared and he shall be compensated for all wage
loss suffered.
OPINION OF BOARD: Claimant, with a seniority dating from August 7, 1980,
was assigned to Surfacing Gang Y-232, working under the
supervision of Assistant Foreman J. Be11in and Project Engineer A. McNally,
when the occurrence giving rise to the dispute herein occurred.
On June 25, 1981, Claimant was notified to appear for trial on July
6, 1981, on the charge:
"0n Friday, 6/19/81, M.P. 103.5, at approximately 1:40
P.M., you were observed sleeping or assuming the
attitude of sleep while on duty as an advance gang
watchman which is a flagrant violation of Amtrak Safety
Rules and Instructions. Rule 4143, which reads: 'Gang
watchmen must give their entire attention to watching
for trains and warning the men and must not perform,
even momentarily, and (sic) other duties. They must
not leave their post until instructed by the man in
charge that protection is unnecessary or another gang
watchman has been assigned and is in position and
watching for approaching trains,' and is also a violation of Rule L of the National Railroad Passeng
Corporation's Rules of Conduct."
Rule "L' of the National Railroad Passenger Corporation Rules of Conduct,
referred to in the notice of charge, reads:
"L" "Employees shall not sleep while on duty, be absent
from duty, exchange duties or substitute others in
their place, without proper authority."
Award Number 25159 Page 2
Locket Number MW-25300
The trial was conducted on July 6, 1981, as scheduled. Claimant was
present throughout the trial and was represented. A transcript of the trial
has been made a part of the record. Following.-the trial, Claimant was notified
by certified mail of his dismissal from service. While the discipline notice
was dated June 15, 1981 (obviously in error), certified receipts show that the
discipline notice was mailed July 17, 1981, and receipted for by Claimant on
July 22, 1981.
In the trial substantial evidence was presented in support of the
charge against Claimant. There was direct testimony by the Project Engineer
that Claimant, while on duty, as advance gang watchman and under pay, was performing
no work for the Carrier but was seated in a nearby passenger station with his
head bowed, eyes closed and apparently asleep about 1:40 P.M. It is apparent
that Claimant took it upon himself to determine that the services of an advance
gang watchman were not needed when he left his post of duty and went to the
nearby passenger station. Such a decision was properly to be made by supervisory
personnel and not by Claimant.
We will deny the claim on the merits, without passing upon the time
limit issue raised by the Carrier, or the complaint of the organization as to
the date of the discipline notice to Claimant.
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
That the Agreement was not violated.
A
W
A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest4~
Nancy J er
- Executive
Secretary
Dated at Chicago, Illinois this 30th day of November 1984.