After thoroughly reviewing and considering the record and the parties' presentations. the Board finds that the claim should be disposed of as follows:

The Claimant entered service for the Carrier on September 9, 1976 as a Track Laborer. During the events that lead to this case. the Claimant was assigned to the position of Assistant Foreman in the Track Slrb-department. On March 22, 2012 the Claimant was ordered to provide flagging protection for contract workers at CP 285 near Toledo. Ohio. At 9:SSAM that day, the supervisors who had assigned this task went to the work site to discuss instructions they had previously given to the Claimant.

Upon arrival

a Carrier vehicle in a slouched position with his eyes closed and snaring. The supervisors tank photographs of the Claimant while he was in this position (see Carrier Brief, Exhibit 3). Afterwards, they alerted the Claimant to their presence and questioned him about his activities. The supers-Tsars (Ivlr. Andrews and Mr. Pries) testified that the Claimant appeared to be disoriented and incoherent, which required them to repeat their questions. They also testified the Claimant could not offer an explanation for being found in this position, other than stating "this job is boring" in reference to his assigned task that day (see Transcript, pages 3-4, 8-9).

As a result of these events the Claimant was removed from service pending a formal investigation by the Carrier, which included a hearing an April 13, 2012. The Carrier found that the Claimant was guilty of violating general conduct rule GR-26 and notified the Claimant of his dismissal from service on April 19, 2012.

The Carrier argues that the Claimant is clearly guilty of violating GR-26 because (I) of the testimony of Mr. Andrews and Mr. Pries and (2) because the Claimant himself admitted to being asleep at the investigation (see Transcript, page 9). The Carrier notes GR-26 specifically bans sleeping, and that the Carrier's supervisor, Mr. Andrews, testified that the Claimant was specifically aware of this rule (see Transcript, pages 6-7). The Carrier argues that dismissal is warranted in this case because by sleeping the Claimant failed to perform a "critical task of protecting contractors w=orking around live tracks" (see Carrier Brief, page 6). The Claimant's work record also shawls formal discipline actions for multiple previous rule violations which received Letters of Counsel and suspensions, so dismissal in this case is in line with progressive discipline. Finally, while the Claimant is a very senior employee, the Carrier cites cases like NRAB Third Division Award ?I835, which stated "It leas been held that an employee's length of service cannot be the basis for mitigation of penalty unless some doubt exists as to the proof of guilt ...." (see Carrier Brief, Exhibit I-I).

The Organization's position is that as the Claimant admitted his guilt in this case, the only matter of dispute is whether dismissal was appropriate. The Organization argues that the Claimant's actions are mitigated by several notable factors. First, it argues the Claimant is a fang term employee with a exemplary work record (see Organization Brief, pages 7-S). Second, the circ:mnstances surrounding the events show the Claimant while sleeping did vat endanger the safety of anyone else (see Organization Brief, page I4). Finally, the Organization cites a series of previous awards, including notably NRAB Third Division, Award ?4qi'?, where an employee in a situation that had more aggravating factors than the instant case «--as dismissed and later reinstated for reasons in line xvith the C)rganization's arguments see Organization Brief, pane 17).

The Board finds there is no dispute that the Claimant was sleeping in direct violation of GR-26. Aggravating factors in this case are that the Claimant does possess a Nvark retard with multiple inti-actions for previous rule violations. Concurrently, we consider as a mitigating factor the Claimant's long history of service with the Carrier. In

coming to its decision, the Board has carefully weighed the seriousness of this infraction along with the claimant's seniority, the fact that he took responsibility for his actions by admitting his misconduct, and his work record. The Board finds that the penalty of dismissal was inappropriate in this case. The Claimant shall be reinstated, but he will forfeit his seniority as assistant foreman and will not be awarded any back pay.

The claim is partially sustained.

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