SPECIAL BOARD
OF
ADJUSTMENT
PUBLIC LAW BOARD NO. 3729
CONSOLIDATED RAIL CORPORATION
"CARRIER"
-and-
BROTHERHOOD
OF
MAINTENANCE
OF
WAY EMPLOYEES
STATEMENT OF CLAIM
CASE NO. 14
"ORGANIZATION"
AWARD NO. 12
Claim of the Brotherhood (CP-1484-D) that:
(a) The dismissal of Trackman D.L. Torbicki was
without just and sufficient cause, in an
arbitraty and capricious manner.
(b) The Claimant, D.L. Torbicki, shall be exonerated
of the charges and restored to service without
loss of seniority, vacation rights,
and all other benefits enjoyed by the Claimant
prior to his dismissal, and shall be compensated
for all lost wages.
This claim arose when the Carrier charged D.L. Torbicki,
hereinafter the Claimant, with sleeping while on duty. The
specific charge, contained in a notice
dated April
19, 1985, was
as follows:
Your sleeping while on duty with the SC
480 Surfacing Gang at Wayneport, New
York. This incident occurred on April
17, 1985 at 1:15 p.m. at approximately
MP 358, Chicago Line, while you were
assigned to operate Ballast Regulator BR
1264.
PLB-3729 Award No. 12
In connection with occurrence, you are
charged with the violation of Rule E of
the General Rules of ConRail Rules of
the Transportation Department.
The-hearing was held on May 9, 1985. The Claimant was
present and represented by the Organization. By notice dated
May 28, 1985, the Carrier notified the Claimant that he had been
found guilty of the charge and assessed discipline of discharge.
The above-quoted claim was then filed on behalf of the Claimant.
This Board heard oral argument concerning the claim on
February 13, 1986. The Claimant was notified of the Board meeting
by certified mail but did not attend.
The Claimant was a trackman. On April 17, 1985, the date
of the alleged incident, he was assigned to operate a ballast
regulator. At approximately 1:15 P.M., he was discovered
sleeping in the ballast regulator operator chair. The machine was
standing still but in an operating mode, with the engine running
and lights on. When awakened and questioned, the Claimant said
he was on his lunch break but could not recall when he started on
the break. Later that
afternoon the
Carrier removed the Claimant
from service.
POSITIONS OF THE PARTIES
The Carrier contends that there is substantial evidence in
the record to support a finding of the Claimant's guilt. There is no
evidence to support the Claimant's assertion that he was on lunch
break. If he was, it would not excuse sleeping at the machine. As
the Claimant received a fair hearing and the penalty of discharge is
appropriate for the offense, the claim should be denied.
-2-
PLB-3729 - -- Award No. 12
The
Organization asserts
that the claim has merit, as the
Carrier has failed to establish that the Claimant was not resting
on his bunch break. As the record does not establish that the
Claimant was paid for the break, he was entitled to use the time
to rest. Furthermore, the Carrier committed procedural errors,
as there was no need to remove the Claimant from service and he
did not receive a fair and impartial hearing.
OPINION OF THE HOARD
The claim shall be denied. The record contains substantial,
credible evidence to support the Carrier's finding that the Claimant
was sleeping during working time. The penalty of discharge was notarbitrary, especially in light of the potential danger of falling
asleep at the ballast regulator while it was running, The Carrier
committed no procedural errors that warrant setting aside the
discipline.
AWARD
Claim denied.
S.E. H(JCHHEIT
Neutral Member
-.,s2~--
Z Z~
R. .YEILL
-4
J,P. CASSE E
Carrier Member
Organization Member
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