SPECIAL BOARD OF ADJUSTMENT N0. 986
Case No. 37
Docket No. NEC-BMWE-SD-1390D
PARTIES: Brotherhood of Maintenance of Way Employes
TO
DISPUTE: National Railroad Passenger Corporation (Amtrak)
FINDINGS:
By letter dated September 3, 1985, Claimant W. Richards was
notified to attend a hearing in connection with the following charge:
Violation of NRPC Rules of Conduct, General Rule 'L,' which reads
in part: "Employees shall not sleep while on duty;" and Rule 'K,'
which reads in part: "Employees must attend to their duties during
the hours prescribed and comply with instruction from their
supervisor."
Specification: In that on 8/30/85 at approximately 1:10 P.M. in the
vicinity of the draw section of the Susquehanna River Bridge, you
were observed assuming the attitude of sleep.
The hearing took place on September 10, 1985. As a result of the
hearing, Claimant was assessed a thirty-five-day suspension. The
Organization subsequently filed a claim on Claimant's behalf,
challenging the suspension
The Organization contends that the record establishes that
Claimant suffered an on-the-job injury on the date in question;
Claimant received medical treatment for this injury, including a
prescription for pain medication. At 1:10 p.m. that day, Claimant was
physically unable to perform his duties because of this injury. At
that time, Claimant was tending to his injury, not assuming the
attitude of sleep or neglecting his duties. The Organization points
out that neither of the supervisors who saw Claimant at the time in
question asked Claimant about his physical condition or if he had been
injured. The Organization asserts that Claimant failed to prove that
Claimant was assuming the attitude of sleep and neglecting his duties.
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The organization therefore argues that the claim should be sustained.
The Carrier contends that there is substantial probative evidence
in the record that supports its finding of guilt. Carrier asserts
that its two foremen gave concise testimony that Claimant was found
lying on the bridge, assuming the attitude of sleep; moreover, other
employees testified that they also saw Claimant lying down on the
bridge. Carrier disputes the Organization's contention that Claimant
was resting because of a knee injury. Carrier points out that at the
time he slipped, Claimant told another employee that he was alright;
Claimant also did not indicate that he had been injured until after he
was removed from service in connection with the instant charge.
Carrier also asserts that if Claimant had sustained such an injury, it
is incredible that Claimant would have made the difficult descent from
the point where he slipped to the point on the bridge where he was
found lying down.
The Carrier further argues that there is no merit to the
organization's charge that its foremen did not inquire into Claimant's
physical condition; both foremen stated that they saw nothing wrong
with Claimant except that he was lying down and soundly sleeping.
Carrier contends that the assessed discipline is commensurate with
both the
nature of the offense and Claimant's prior record; the
discipline was not arbitrary, capricious, or excessive. Carrier
therefore argues that the claim should be denied in its entirety.
This Board has reviewed the evidence and testimony in this case,
and we find that there is sufficient evidence in the record to support
the finding that the Claimant was guilty of the offense with which he
was charged.
Once this Board has determined that there is sufficient evidence
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in the record to support the guilty finding, we next turn our
attention to the type of discipline imposed. Assuming the attitude
of sleep has often led to termination of employment. Consequently, we
cannot find that the 35-day suspension issued the Claimant was
unreasonable, arbitrary, or capricious. Therefore, the claim must be
denied.
Award:
Claim denied.
97r
Neut al Member
i~
L
ar ier Me r Organization member
Date:
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