SPECIAL BOARD OF ADJUSTMENT NO. 1048
AWARD NO. 168
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim on behalf of C. A. Borders for reinstatement with all rights and privileges and pay
for all time lost as a result of his dismissal from service following formal investigation
on December 20, 2007, concerning sleeping on duty during the TS-30 morning safety
meeting at approximately 7:30 a.m. on Tuesday, November 27, 2007, in Detroit Yard.
(Carrier File MW-PITT-07-84-SG-440)
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 under Public Law 89-456 and has jurisdiction of the parties and subject matter.
AWARD
After thoroughly reviewing and considering the record and the parties' presentations, the Board finds that
the claim should be disposed of as follows:
The record reflects that on November 27, 2007, Claimant's gang met on the bus for their morning job and
safety briefing. The Supervisor conducted the safety meeting. Then the Process Engineer addressed the
gang. The Process Engineer testified that he observed Claimant sitting in a slouched position with his
head down and his eyes closed. The Process Engineer testified that he spoke directly and loudly to
Claimant but Claimant did not move. He spoke directly and more loudly to Claimant a second time but
Claimant did not move. He spoke a third time and Claimant jumped up, apparently startled, and was
taken out of service. The Supervisor testified and corroborated the Process Engineer's testimony.
Claimant testified that he had a headache that morning and therefore was resting his head on his arms but
was not sleeping. Claimant maintained that he was paying attention to the Supervisor and the Process
Engineer but did not respond to the Process Engineer because he did not realize that the Process Engineer
was talking to him. As an appellate body that does not observe the witnesses testify, we are in a
comparatively poor position to assess witness credibility. Consequently, we defer to the reasonable
credibility determinations made on the property. We find the decision on the property to credit the
testimony of the Process Engineer and the Supervisor was reasonable and defer to it. We conclude that
Carrier proved the charge by substantial evidence.
SBA No. 1048
Award 168
The charge was very serious. Claimant was a relatively short-term employee (only three years of
service). We find no mitigating circumstances in the record. Accordingly, we conclude that the penalty
imposed was not arbitrary, capricious or excessive.
A
The claim must be denied.
T. W. Kreke
Organization Member
M. H. Malin
Chairman and Neutral Member
Issued at Chicago, Illinois on December 5, 2008
D. L. Kerby
Carrier Member