(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Dmployes PARTIES TO DISPUTE: (Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9511) that:
1. Carrier acted in an arbitrary and capricious manner when it suspended Clerk A. J. Berta from service for a period of ten (10) days commencing June 26, 1980;
2. Carrier shall now compensate Clerk A. J. Berta for all time lost as a result of this suspension from service and shall clear his record of the charge placed against him.
              OPINION OF BOARD: r0n May 26, 1980, Clerk A. J. Berta was on duty and assigned to an Input/Output Technician's position, working midnight to 8:00 a.m. As a result of an incident occurring during his shift, Berta was charged with "allegedly sleeping or assuming an attitude of sleep while on duty at 7:20 a.m. on May 26, 1980". This would constitute a violation of Rule H, which reads as follows:


        "Sleeping or assuming an attitude of sleep, with eyes closed or covered, while on duty is prohibited."


Following an investigation hearing, Berta was suspended from service for a period of ten (10) days.
The facts with regard to the incident in question are in dispute. According to the testimony of R. L. Delaney, Manager Special Equipment:
        'On Monday, May 26, at approximately 7:20 a.m.... I observed Mr. Berta sitting by the screen in the southwest corner of the office. He was sitting in fr the desk with his feet propped up on the tray, the pullout tray of the desk. He was leaning back in with his eyes closed. His head was tilted forward a little bit, his hands folded in front of him. And as I approached him, I said, 'Berta, wake up'. It was necessary for me to call his name twice more before I was able to awaken him. He was disoriented for a few moments.ff

                    Award Number 25431 Page 2

                    Locket Number CL-24175


According to Mr. Berta's testimony:
        "I was sitting with my feet propped up on the tray which I do when the work is caught up and I don't think I am the only one that does that. But, I definitely stated that I was not sleeping at the time. It was resting my feet up on the desk, the tray, which I do not deny."


When asked if he had his eyes closed, Berta responded, "I cannot recall. I know I was not sleeping. Now, I do not believe I had my eyes closed".
It is undisputed that at about 7:10 a.m. some reports were generated by the computer and that Mr. Berta stripped them from the printer and delivered them to the Chief Train Dispatcher. Thereafter, at approximately 7:18 a. m., Mr. R. A. Gleason, Chief Yard Clerk, testified that he walked in the office where Claimant was to pick up the yard check in the basket, and kidded with Berta that it was day work. Gleason further stated that:
        "He (Mr. Delaney) walked in, looked around and turned around and walked out the door to where the counter is. He turned back around and came in at that time and I was starting out of the room and heard him tell Tony, 'Berta, wake up'. I heard Berta respond by saying, 'I am awake'. I was at the doorway at that time."


Gleason repeated that Delaney only said "Berta wake up" the one time, and that Berta answered right away that he was awake.
Delaney did not recall having come into the office, leaving, and coming right back. Both Berta and Gleason stated that he did. While Delaney stated that he had to call out to Berta three times to wake up and that Berta appeared disoriented, both Berta and Gleason stated that Delaney only called out one time and Berta immediately responded that he was awake.
On the state of the record herein, the Board is unable to find that Berta was asleep at 7:20, particularly since he and Gleason had exchanged comments at 7:18. The remaining question is whether Berta was "assuming the attitude of sleep" within the meaning of Rule H. Berta acknowledged that his feet were in an elevated position, and that he often did this because of a prior problem with his foot. The record also indicates that his eyes may have been closed. But the record also indicates that Berta was not remiss in performing any of his duties and that he immediately responded to Delaney.
The Carrier takes the position that, nonetheless, whenever an employe has his feet in an elevated position with his eyes closed he is not working or assuming the attitude of work, but rather, sleeping or assuming the attitude of sleep, which is a disciplinary offense considering the circumstances that he is on duty and under pay. The Carrier further maintains that the ten-day suspension was in line with the practice on the property for first offenders of Rule H.
                    Award Number 25431 Page 3

                    Locket Number CL-24175


While the Board agrees with the Carrier that sleeping is a serious offense, warranting the degree of discipline cited by the Carrier, the facts of this case, when read in light of Rule H and the cases relied upon by the Carrier in support thereof, do not warrant the same conclusion.
Berta was not observed by Delaney for other than a few seconds, and, at most, Berta had his eyes closed. Under all these circumstances, the Board finds that the ten-day suspension was improper, and that Berta should be compensated for all time lost as a result of his suspension from service. However, since Berta apparently had his eyes closed, causing Delaney to have to tell him to "wake up", the Board finds that a letter of reprimand would be appropriate to remedy the concerns of the Carrier.
        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 discipline was excessive.


                        A W A R D


        Claim sustained in accordance with the Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


1401
 Attest: _
        Nancy J r - Executive Secretary


Dated at Chicago, Illinois this 30th day of April 1985.