NICKEL PLATE, LAKE ERIE AND
WESTERNOAND CLOVER LEAF DISTRICTS
PUBLIC LAW BOARD NUMBER 1837
PARTIES TO
DISPUTE:
Norfolk and Western Railway Company
and
Brotherhood of Maintenance of Way Employes
STATEMENT OF CLAIM:
1. The dismissal of Crossing Watchman C. K. Puentez
was arbitrary and capricious, the decision being
based on unrelated charges not cited by the Carrier
prior to the hearing and not supported in the trial
transcript..
2. Claimant Puentez should now be afforded the remedy
of Rule 22(e).
FINDINGS: This Board, upon the whole record and all evidence,
finds that:
The carrier and the employee involved in this dispute
are respectively carrier and employee within the mea.ning of
the Railway Labor Act, as amended.
This Board has jurisdiction over the dispute involved herein.
OPINION:
Claimant was dismissed from duty following a hearing
on the charge of sleeping on duty and while under pay at about
5:30 a.m. on July 2, 1979; such event purportedly occurred in the
tower at Indianapolis Boulevard at the Carrier's Chicago Terminal.
The Claimant was employed as a crossing watchman with some
15 years of service at that time.
The organization's assertions to the contrary notwith-
standing, the record supports the Carrier's version of events.
r
We find nothing substantive in the record of the hearing to
militate against such a conclusion. The fact that the Claimant
may have earlier that morning observed the supervisors. checking
his truck does not lessen the potential that the supervisors
observed him sleeping; indeed, by his own account the Claimant
was in a chair with his hat pulled down to the bridge of his
nose. One may reasonably wonder at such conduct on his part if
he knew the supervisors were in the area and, given the unrefuted
testimony that he bad been observed in a sleeping position twice
before within a month for which a discipline suspension had been
assessed, his conduct on July 2, 1979,even by his own account
was incredible. It is also pointed out that cnca a basis for
discipline has been established by the incident in dispute,
the extent of such discipline may be predicated upon a review
of an employee's prior disciplinary and work record.
Sleeping on duty is a serious offense and while we are
mindful that the Claimant had accumulated 15 years service prior
to his dismissal, we find it beyond the province of this Board
to disturb the Carrier's actions in this case. If the Claimant
is to receive further consideration, it must come from the Carrier.
2-
PLB-1837
Page 2
Awd.
#57
PLB-1837
Page 3
Awd. 1/57
AWARD:
Claim is dismissed.
~7vV°~
l~Y
es F. Scearce
utral Member
L;,.
'L~,S-L (2,
E. N. Ja s, Jr. William E. LaRue
Carrier Member Organization Member
Dated
c~
~~ '~'',~ at_~ Ll17CS~k'~.~l~.t
-3-