PARTIES TO DISPUTE
STATEMENT OF CLAIt
PUBLIC LAW'BOARD NUMBER 3530·'
 Award Number: 116
Case Number: 116
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

 And

 NORFOLK AND WESTERN RAILWAY COMPANY

 Claimant, L.J. Stewart, P.O. Box 57, Pembroke, VA 24136 was assessed a 3D day suspension for alleged violation of Safety Rules No. 1713, 1041 and 1002. Claim was filed by the Employes in accordance. with the Railway Labor Act and agreement provisions`. 'Employes request he be paid for the lost time and the suspension removed from his record.

 FINDINGS
Claimant entered the Carrier's service on October 24, 1978.

 By letter dated June 16, 1986,-Claimant was notified to attend a formal

 ,investigation on charges that he violated the Carrier's Safety Rules 1713, 1041 and, 1002..' The' investigation~,was held on August 1.5, ,1986, at which tim,E evidence. was, adduced~·which led, tof'Claimant.!"s suspension for X30 days,·~

 The issue to bp,decided in,Ghis dispute is whether-Claimant was suspended,'for'justcause under the Agreement; and ~if not, what should the

 remedy be. ·
On June S, 1986, Claimant.wa's,assigned as a Scarifier Operator install-

 ing ties as the West End of RoanolCe Terminal. The clay was extremely hot and, a substantial amount of coal dust,was in the air. The machine in front of,_
 Claimant's stopped because,it had caught up to where the spike pullers were working. Yard Tie Gang Supervisor R. L. Zehringer noticed that Claimant's

 machine was not operating.
Zehringer came to Claimant',s machine and noticed

 Claimant slouched with'his eyes closed. 'Claimant's hard hat was ofd, his shirt uiib.utponed,at}d~'c611ed up,past his abdomen. Zehringer,determiried that Claimant ~a's,'aslei'pbyl'waving, hyhand in~,'front o f'~Claimant'~s face arid

 looking at Claimant from as close a one foot. Zehringer then woke Claimant by shaking him and;calling his name_

off, his shirt roil ed~up, he was "laying back" and had a, cold rag over his,
 m
 eyes trying to clean the dust out,and cool off. Claimant denied being -

 In relevant portion, Rules 1713, 1041 and 1002 prdvide:·

 1713: ,
 *** sleeping on duty, *** is sufficient_ caus~a for dismissal.

 An employee lying down or in,,a slouched position with eyes closed or, with eyes covered or concealed will be considered sleeping.

 _1041: ' Safety equipment; such as hard hats, ***, prescribed by instructions from employing departments to be worn in specified areas or for specified jobs, must be used by all persons affected by these instructions.

 _1002:
 Employees must be suitably c

 lothed to perform all duties safety and

 will be governed by the following regulations:
(a) Working in shorts is prohibited. Shirts must cover shoulders, back and abdomen.

cause under the Agreement because he clearly violated the cited rules. The
 Carrier contends that Claimant admits ,to being improperly dressed and without his hard hat. Moreover, Claimant's admission tp "laying back" with the rag over his eyes satisfies the definition of the,act prohibited under the rule regarding sleeping on duty.,.Finally, the Carrier contends that the suspension ,is warranted citing,the overall circiunstances and the provision that sleeping on duty is, by itself, a dismissable offense.

 - The position of'-the-Organization. is that Claimant was unjustly suspended. The Organization contends that Claimant was not asleep as.
charged. -,It cites_te$tiirtony that Claimant was seen active outside his machine as li;Gtle a~ 4'~;'seconds,p.r'Tor'to the.-time Z¢hringer found him.,' "asleep." · The Organization also c,ites Claimant's negative urinalysis as

 evidence he was not asleep. And it,points put that only,one,witness found ~· Claimant asleep, arguing, by implication, that that'is,insufficient evidence, of sleep. Finally, the Organization maintains'that the discipline is too

 harsh.

 After review of the entire record, the Board finds that Claimant's

 suspension was for just cause under the Agreement.

 The Carrier has sustained its burden of showing that it established by substantive' credible evidence in the record that Claimant was asleep oh duty, with his shirt in a configuration prohibited by the rules and with his.. hard hat off. Claimant admitted as much and that was supported by Zehringer's credible testimony in the record. The fact that there was only one Carrier witness does not, by itself, render that evidence unpersuasive.
 Whatever else Claimant may or may not have been doing just before the time
 in question, the persuasive evidence in the record _supportsYthe finding that Zehringer found Claimant asleep and improperly dressed for duty. Finally, the suspension is not too harsh; but rather, is in keeping with the offense. There is no indication of arbitrariness, caprice or discrimination..

 AWARC
Claim denied.

 Neutra ember


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