Upon the whole record and all the evidence, after hearing, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended, and this board is duly constituted by agreement and has jurisdiction of the parties and subject matter.
This award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other case.
The basic facts are not in dispute. On July 28, 2008, Claimant was assigned to Rail Gang R-10. The Gang Supervisor began a safety meeting at 6:00 a.m. Around 6:20 a.m., the Process Engineer entered the dining car where the meeting was taking place and observed Claimant with his head down resting on his wrists and arms crossed in front of him on the table. The Process Engineer slammed the door but Claimant did not respond. The Process Engineer then yelled at the Supervisor asking if the Supervisor tolerated such conduct during his safety meetings. As the Process Engineer yelled, Claimant began to lift his head up.
Claimant maintained that he was not sleeping. Rather, according to Claimant, his eyes were irritated due to a combination of dust stirred up from the gravel by the comings and going of various people and his insertion of this contact lenses. Claimant maintained that he was rubbing his eyes against his wrists. Rule 26 provides, "Sleeping on duty is prohibited. An employee lying down or in a slouched position with eyes closed or with eyes covered or concealed will be considered sleeping." There is no question that Claimant was in a slouched position with his eyes covered. Thus, even if Claimant's explanation was credited, he would still be in violation of Rule 26. There is no question that Carrier proved the charges by substantial evidence.