Brotherhood of Maintenance of Way Employes )
Division - lBT Rail Conference )
)
And )
)
Norfolk Southern Railway Co mpany (Former )
Norfolk & Western Railway Company) )
Case No. 224
Award No. 224
)
Richard K. Hanft, Chairman and Neutral Member
D. M. Pascarella, E mployee Member
D. L. Kerby, Carrier Member
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
The Carrier's discipline (time served actual suspension that began on November 3, 2015 and ended at 11:59 P.M. on Januar y 10 , 2016) of Mr.J. Jordan, issued by letter dated Januar y 6, 2016, in connection with his alleged violation of Rule 2(b) in that he was observed by Carrier supervisors sitting in a slouched position with eyes covered on November 2, 2015 during the morning meeting at approximat ely 7:15 A.M. and again in a company vehicle near CP Attwood at approximately 2:00 P.M. and; conduct unbecorning an emp loyc in that he made inappropriate, threatening and unprofessional
comments to Track Supervisor J. Muuse on November 2, 2015 at
approximately 2:30 P.M. in the superviso r's office in Crewe, Virginia was in violation of time lim.it provisions of Rule 30 of the current Agreement between NS Railway and its employees represented by the Brotherhood of Maintenance of Way Employes (Carrier's File MW-ROAN- 15-56-LM-908 NWR).
J\s a consequence of the violation referred to in Part 1 above, Claimant J. Jordan must now receive all back pay and be otherwise made whole for all losses incurred."
FINDINGS:
Special Board of Adjustment Board 1048, upon the whole record and all of the evidence, finds and holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor J\ct, as amended; and, that the Board has jurisdictio n over
Special Board of Ad ju s tme nt No. 1048
Award No. 224
the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.
This Award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any o ther cases.
After thoroughly rev iewing and considering tl1e record and the parties' presentations, the Board finds that the claim should be disposed of as follows:
Claimant in tlus matter had thirty-thr ee (33) years seniori ty and was assigned as an Assistant Foreman on November 2, 2015 when the conduct that he was disciplined for took place. Claimant 's specific assignment on tl1at day was piloting and providing track protection for tl1e back-up tamper.
Claimant was charged with two (2) counts of violation of O perating Rule 2 (b) that prohibits sleeping or sitting in a slouched position with eyes cove red at bo th th e 7 :00 a. m. morning meeting and later around 2:00 p. m. at C. P. Attwood. He was also charged witl1 conduct unbec oming an employee fo r words exchanged when he was removed from service.
Relative to the first accusation that Claimant was in violation of Operating Rule 2 (b), the charging officer testified tl1at at approximately 7:15 a.m. during the monun g meeting he observed Claimant sitting in a slouched positio n with lus head in his hand with his eyes closed. T he charging o fficer recalled that he hollered "wake up, Jesse" to which Clain1ant immediately responded " I' m not asleep".
Claimant denies that he was sleeping or in a posture prolubited by th e rule. Claimant' s denialwas corroborated at tl1e investigation by five witnesses who were present at the meeting, including tl1e Ass istant Track Supervisor. The Board finds that the Carrier failed to prove tlus violation by substantial evidence.
After tl1at meeting co ncluded and the forces went to tl1eir daily assignments, the charging officer contacted Carrier's Labor Relations Department and a letter of counsel was prepared to be given to Claimant regarding his alleged rule violation at tl1e m ornin g meeting. Aro und 2:00 p. m. the charging officer drove to C. P. J\ tt:woo d to deliver the Letter of Counsel to Claimant. He instructed his Assistant T rack Supervisor to fol.lo w him to be a witness to him delivering the le tter.
The record reveals that when the track supervisor approached the Carrier vehicle tha t Claim ant was in, he noticed Claimant was reclined in the driver's seat sleeping. The assistant track supervisor arrived and also witnessed Claimant and testified that Claimant app ea red to be sleeping. Claimant awoke about five (5) nunutcs later and the charging officer instructe d C laimant to follow him back to the office.
Special Board of J\ d just ment No. 1048
Award No. 224
Claimant, the charging officer and his J\ ssistant Track Supervisor discussed Claimant's inability to stay alert and from the testimon y at the investigation, it appears that the conversation became rather loud and profanity-laced. There is a dispute about who was swearing and who was not, but the Assistant Track Supervisor testified that the foul language was not directed at his supervisor, but more in the form of just letting off steam.
While it is uncontroverted that a heated discussion took place, the Board believes and the record suppo rts, that the things said were not directed at Claimant's supervisor and not meant to be disrespectful or threatening toward the super visor.
There is no doubt , however, after reviewing the record that claimant violated Rule 2 (b) when he was sleeping while on duty at C. P. Attwood at 2:00 p.m. Sleeping on duty in the raiL:oad industr y is a very serious offense, even more so when the employee is supposed to be providing track protection for other employees. Even if the Carrier did not prove that Claimant violated the rule by sleeping or being inattentive at the morning meeting and that the verbal exchange in the office when Claimant was taken out of service crossed the line of treating proper author ity with due respect, reducing Claimant's discipline as being excessive in view of such mitigating factors as his long tenure and lack o f previous similar discipline, to a thirty (30) day suspe nsion would be most generous.
In this instance, however, Claimant was assessed a " time served" actual suspension that began on November 3, 2015 and ended on January 10, 2016. Three weeks of the time served was due to a postponement requested by th e Organization. It is only fair to account for the 15 days th a t Claimant might have earlier been returned to service, but for the postponement.
The Board, therefore, determines that the claim shall be disposed of as follows: Claimant's suspension shall be reduced to forty-five (45) days o ut of service.
Claimant shall be made whole in every way for time out of service in excess of forty-five
days.
Special Unard of. \Jjusrment No. 1!148
, \ wanl l\io. 224
,\Wi\RD:
Claim susrainc<l in accnr<lancc wit}1 the findings. Carrin is <lir, ·c r,:<l 10 make rhi$
,\ w:ir<l cffcctiVl' within thirty Jars followin rhc tl:ire th:tr rwo ml·mbcrs of this Board
affi:.. their sign:irurcs rhcn:10.
D. I .. Kerby, C:tr r-Member
D. I .. Kerby, C:tr r-Member
,/} 'rii. fct> -
D. 1\1. P:i:.c:trd b , t•:mplnycc l\k mb,·r
Dated at Chic, ,, lllino1:.Februar y 11, 211l X