PUBLIC LAW BOARD NUMBER 3445
Award Number: 36
Case Number: 36 ---
PARTIES TO DISPUTE
BROTHERHOOD OF MAINTENANCE OF WAX EMPLOYES
AND
SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM
Laborer; S. D. Hill, 201 Sykes Avenue, Greensboro, NC,
27406, was dismissed from service on October 6, 1984
for alleged failure to properly flag and with resting
in a prone position-during working hours. Claim was
handled on the property in accordance with Railway
Labor Act and agreement provisions. Employes request
reinstatement with back pay for all lost time and all
other rights unimpaired. -
FINDINGS - ---
Claimant, at the time of the incident in question, was
employed by Carrier as a track laborer. By letter dated Septem
bar 21, 1984, Claimant was notified to attend an investigation
concerning charges that he failed to properly perform his duties -
and was resting while on duty on September 11, 1984. An inves
tigation was held on September 28, 1984. By letter dated
October 5, 1984, Claimant was dismissed from service on the basis
of his adjudged guilt concerning the charges.
The issue to be decided in this dispute is whether Claimant
was dismissed for just cause under the Agreement.
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The position of the
Organization is
that Claimant was
wrongfully dismissed by Carrier.
Initially, the Organization contends that Claimant was not
asleep while on duty. The organization admits that Claimant was
in a reclined position, but claims that he was in that position
on the advice of his doctor. The
Organization further
contends
that Carrier failed to establish that Claimant was asleep or
otherwise 'inattentive to his duties.
Carrier contends that Claimant failed to provide flag
protection as instructed. Carrier cites the testimony of
Assistant Track Supervisor Fox that he found Claimant in a
reclined position with his eyes closed at a time when he was
supposed to be flagging. Carrier further cites the testimony of
track laborer Minar who corroborated Fox's account of the
incident. Finally, Carrier cites Claimant's own testimony that
he failed to properly perform the flagging duties assigned to
him. Carrier maintains that the evidence as a whole establishes
clearly that Claimant failed to properly flag, was not alert to
his duties and performed in an overall unsafe manner.
After review of the record, the Board finds that the
Claimant should be reinstated to employment, with seniority
unimpaired, but with no pay for time lost.
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It is not the purpose of this Board to rehear an investigation that Carrier held but only to determine if the discipline
imposed was arbitrary, capricious or an abuse of discretion.
Carrier has sustained the charges against Claimant through
substantial evidence. Claimant's own testimony indicates that he
was assigned line flagging duties, that he was aware of proper
procedure associated with line flagging and that he failed to
follow that procedure. Testimony of other Carrier witnesses
established that at veryrleast Claimant was in an improper
position to perform flagging
functions. Claimant's
failure to
properly attend to his flagging duties constitutes a serious
offense, jeopardizing the safety of both his fellow workers and
Carrier's equipment. If Claimant felt unfit for duty because of
medication he was taking, he had an affirmative duty to inform
Carrier of that problem. Failure to have done so only further
establishes Claimant's breach of duty.
Notwithstanding the above, we find that Claimant is entitled
to reinstatement. However, in light of the seriousness of the
offense, we do not find Claimant eligible for any pay for time
lost. Additionally. Claimant should be made aware that any
future violations of this type will constitute grounds for
immediate dismissal.
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AWARD
Claim disposed of per Findings herein.
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DATE:
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