PUBLIC LAW BOARD N0. 2556
Award No. 20 '
Case No. 29
Docket No. MW-377
Parties. Brotherhood of Maintenance of Way Employes
to and
Dispute Southern Railway Company
Georgia, Southern and Florida Railway Company
Statement
of Claim: Claim on behalf of former B&B Mechanic James W. Henderson
that he be restored to service with seniority and other
rights unimpaired, and be paid for all time lost as a
result of his dismissal on September 25, 1981 for failing
-to ,properly flag.
Findings: The Board, after hearing upon the whole record and all evidence,
finds that the parties-herein. are Carrier and Employee within the meaning
of the Railway Labor Act, as amended, that this Board.is duly constituted
by Agreement dated October 17, 1979-, that it has jurisdiction of the
parties and the subject matter, and that. the parties were given due
notice of the hearing held,
Claimant, on September 1, 1981, was assigned to and working with
Bridge and Building Gang No. E19R which was performing work on a trestle
at Mf7e Post V26.Q near Beltorn, South Carolina. The repairs required that
members of the gang'and a large bridge hoist (crane) work out on the
trestle. Operating Rule 1507(b) requires that there be flag protection
provided in both directions in order to protect the track equipment
unless other means of protection have been arranged for.
Claimant was one-of the employees assigned to provide flagging
protection. A Supervisor and a B&B Helper both found Claimant lying
down by the track asleep instead of providing flag protection.
Claimant was advised, under date September 3, 1981, to. attend a
formal investigation:
"'...charged with improper flagging, violation
of Rule 99, Rule 1507(b) and Standard
Procedure No. 740 - Live Flagging.. At
approximately 9 A.M. September 1, 1981, you
. -2- Award No. 20
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5510
were found lying down asleep on the inside of
the curve of M.P. V26.5. You were supposed to be
protecting bridge crew working with a bridge
hoist on trestle at N. P. V26.0 from all eastbound
movements."
Following the investigation Claimant was advised, under date of
September 25, 1981, in part:
"The evidence in the-above mentioned investigation
is conclusive that you were asleep while performing
flagging duties protecting Bridge Gang E19R at
Mile Post V-26.0. Sleeping in the performance of
flagging duty greatly endangered your fellow
employees-with serious injury or even death.
In-view of the above violation you are
permanently dismised-as a B&B employee of.
Southern Railway effective end of working day
September
255,
T98T."
CTaimant',s defense, in essence, was that while he was laying down
he was not sleeping and that he only laid down because his side was
hurting and that he had spoken to Supervisor Sheppard and
B&B
Helper
Blythe when they walked up.
Claimant's perception of the facts differ markedly with that of
Carrier's witnesses. Here,. Carrier chose to believe the testimony of its
witnesses- The record finds naabuseof such discretion.
There was sufficient evidence adduced to support the conclusions of
guilt reached by Carrier.
The offense for which Claimant was charged, sleeping while on duty,
is_highly reflective of extreme negligence. It is a most serious
offense with discharge generally assessed. as discipline therefor. In
the circumstances the Board finds no cause on: this record to interfere
therewith. This c7airtr will be denied.
Award: Claifr denied.
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mp oyee a ens z , , Carrier Member
~~ furl ~~lts ~ .tell?
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Arthur Van wart, Chairman
and Neutral Member