Brotherhood of Maintenance of Way Empk,yes )
Dh>ision - HH Rail Conference: )
)
AnJ )
)
Norfolk Southern lbilway Company )
(Former Norfolk & Wcstt•m Railwar Company) )
Case Nn. 82
Aw:m.1 No. 82
Rich:mJ K Hanft, Chairman and N1.·utral Member
D. 1\1. Pascardb., Emplorec Member
D. L. Kerby, Carrier Member
"Claim of the Sysrcm Committee of the Brotherhood that:
L ·nw Carrier's discipline (Jismissal) of Mr. D. HiJQ..rinbotham, issued by letter dntcc.l l\fay 6, 2016, in conncctinn with his alk·j.,rcd violation of Opcrnting Rulc 2 1) in that he was obscr\'Cd by 11 Carrier supcr\'isor sitting in a company truck in a slouched position with crc.-s covcrcd at approximately J:00 P.1\,1. on March 21, 2016 ar Hobson Yard was arbitrary•. capricious and unwarrnnt,-c.l (Carril-r's File MW-FIW-16-H14·LM-3.3<• NWR).
2. As a consequence of the viofarion referred to in Part 1 abo\'c, Claimant 1). Higginbotham shall be rc:instatcd imm(.'tliatel)•, exonerated of all chatACS ancl compensated ail lost W3b'CS, including u\'crtimc, credits and overtime Jcnic<l to him, comml·ncing March 21, 20 t6 unril he is placccJ back in scn•icc or until this matter is rl.-:1olvl'll."
Flt:,JDlNC ;s:
Public Law Board (,349, upo11 the ,vhok• rccorc.J an<l all of the c,·iJcncc, finds and holds that I•'.niployl·c and ( :arricr arc employee and carrier within the mc.-aning of the Railway l.abor Act, as amc.-ndcd; anJ, that the Board has jurisdiction over the dispute herein; and. that the parties to the c.fo,-pute were gh•cn Jue notice of the lu.-aring thcn.:on anJ Jid JY.lrridparc therein.
This1\ward is based on the facts and circumstances nf this particulnr case and shall
not 11cn·c ns a precedent in any othl'l' cas1.'II.
Pagel of3
Public I.aw Uoan.l No. 6394
,\wnrd No. 82
Aft4:'r thoroughly rc,•icwing and considering the record and rhe parties'
presentations, the Bonrc.1 finds that the duim should be dispos,:d of as follmw:
The Claimant, D. f-liAAinhotham, wa11 a twdvc (12) y<.-ar Yetcrnn of the Carrfor and
working a11 a foreman at the time this di.11putc arose.
'lbe rc.-cord e,·idcncc revt.-als thaton March 21, 2016 the As11i11tant District I nginecr ("1\DE") had reason to be at the Hobson Yard Office. He.• rc:callcd that as he was leaving the Yard Office, he hc.-ard a truck running and i1wcstigntt.-d. 'lbe ADE testified that he spottc.'<l the Smoothing (1ang's company ttttck and walked m·cr to in,•esti tc.·. As he.· neared the truck, he related, lw saw Claim,'lnt reclined in the: front scat with hi11 eyes covetc.•d. '!be t\DE took picturcii and Claimant l>e1-, n stirring. The ADE asked him if he was having a nice nap and Claim.mu n:plic.-c.l that he had. 'Inc ADH's testimony was not dis1n1ted at the liwc.'lltigation on the property.
As a result of bc.-ing caught sh:t•ping on duty. C:L1imant wall rcm<n·cd from sen•ice. An i1w<.i;rigarion was held on April 25, 2016 and after rwicw of the t.•vi,fonce. the hearing officer found Claimant guilty lll charge,! and he wall dismissed.
On the ,fay following being caught slec.'ping by the ADE. Claimaa1t villitc.-tl a medical doctor and after testing, was tlin1,,moscJ with Obstmcrivc Sleep Apncn. The
{ )r1,,oanizatfon submits that Ciuim.'lnt's falling aslc.>c:p while on duty was due to his then unJiscovcrc.'<i anc.l untreated condition anJ that no cmploycc should bc disciplined for suffering from a medical conllirion.
'I11e Hoard is aware that slc.•<.-ping on duty is wcll rccognizec.l as a Sl'vere offense warranting di.•m1issal in thc railroad imlustrr. Howc.-ver, we considcr also whether the reason that very \,,.ell may ha,•c lc.-d tu Claimam's rule violation, an unc.li.11,"llo!ICJ media1l condition, mit atc."ll a1,.,ainst dismissal due to the uni,1uc circumstancci1im•oh'cd in this case.
·me Hoare.I deterniin<.'!I that the Cfaimant sbnH be rcinstntcd without compensation for rime out of scn•icc provi<lc.'<l be is able to pass a rctun1 to work physical and follows hi.<i f'>hysician's prt."llCribeJ couriie of treatment for his c.lisordcr.
Public J.'.lw Hoard No. (>394
,\ward No. K2
:
Claim sustainL.J in accordance with the finc.lingii. Carrier i11 directed to make this A,vard effective within thirty (30) Jars followin thedate that twn mcmberg of thi." Uoard nffix their si!,l'fUtnm•-.ic thcrc..1u.
,/)_ 'nJ. 1
Richard K. Hanft, C'l,airman
D. M. Pascarella.. Employee Member D. L. Kerby. Carrier Memher Dated at Chicago. ll!inois. January 10. 2018