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This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

The charge was that claimant was asleep on duty and thereby violated Rules 20, 21 and 22 of carrier's General Rules for the Guidance of Employes, which require employes to devote themselves exclusively to their duties during tour of duty, and forbid their absenting themselves from duty or being indifferent to it.

The principle is well settled that this Board is not a trier of facts and will not determine the weight of evidence, but will examine it to determine its sufficiency to sustain the discipline. We cannot, therefore, hold that the hearing officer should have believed the claimant's denial and disbelieved the testimony of two witnesses that the claimant was asleep on the job, and of another witness working in the same room who stated that he believed claimant was asleep, but explained that he "couldn't see him directly.”

It was admitted that the hearing was fairly conducted and that claimant merited discipline; but the contention is that his suspension and discharge were unjust and improper.

Award 1664 is cited in which this Division held that sleeping on the job was a serious charge, but that an employe's discharge was excessive after almost thirty years' service with a good record. But in Award 1658 this Division held otherwise where the employe's service was less than ten months. Here it was only six months.

It is also contended that claimant was improperly suspended pending the hearing, under Rule 3342 which authorizes “suspension in proper cases.” No awards are cited which hold that charges of sleeping on duty are not proper cases for suspension; in Award 1541, under an identical suspension rule, this Division held that sleeping was a complete neglect of duty, and upheld both the suspension and the discharge. Claimant's suspension pending the hearing cannot be held improper.

The record shows that claimant and his shop associate had divided the work of the shift, claimant taking the outside work, and that there being no outside work for some undisclosed period, claimant considered himself at leisure without looking for work inside the shop. He expressed surprise that such a charge was made, and said:

"I don't want to get anybody in trouble, but when the work is slack, as far as laying down or even sleeping, that is a pretty common thing around here, for about half the people on this railroad.”

That statement, and the examining officer's comment that he was concerned only with the facts on the present case, indicate a condition suggesting, although not actually constituting, a situation similar to those in Awards 2623, 2653 and 2851, in which sudden strict enforcement of general rules without notice was held to constitute an abrupt change in policy which made discharge an excessive, arbitrary and capricious penalty. Under these circumstances we consider the penalty excessive to the extent exceeding claimant's suspension beyond the time needed to make this award effective.

AWARD

Claim 1 denied.

Claims 2 and 3 sustained to the extent that claimant be restored to service with all rights unimpaired but without pay for time lost.

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION

ATTEST: Harry J. Sassaman

Executive Secretary

Dated at Chicago, Illinois, this 6th day of February, 1963.

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Docket No. 4019

2-N&W-F0-'62

NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.

PARTIES TO DISPUTE:

SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C.I.O. (Firemen & Oilers)

NORFOLK & WESTERN RAILWAY COMPANY

DISPUTE: CLAIM OF EMPLOYES: 1. That under the controlling agreement, the position of Chief Weighman at the Norfolk Grain Elevators should be advertised to the employes as named in Rule No. 1.

2. That accordingly the Carrier be ordered to advertise the position of Chief Weighman under the provisions of Rule 14(a) of the controlling agreement.

EMPLOYES' STATEMENT OF FACTS: On the effective date, November 25, 1958, of the controlling agreement, Mr. Walter Finn, Seniority date 1-30-1930, held the position of chief weighman.

Mr. Finn was an employe of the Norfolk and Western Railroad working at the Norfolk Grain Elevators which were leased to the Continental Grain Company. Mr. W. Finn had full supervision of the scale room and kept all records of work connected with the scale room. Mr. Finn was paid a salary as chief weighman.

Sometime in January, 1959, Mr. Finn was assigned the duties of pulling levers which resulted in the moving of grain from the garner to the scales and from the scales to the shipping bin. These were duties that had always been assigned to weighmen in the past. Since Mr. Finn had a heart condition, he was unable to handle the new duties and he was assigned to the position of truck dump weighman, a position not covered by the firemen and oilers' agreement but by the agreement of the operating engineers who hold the contract for the Continental Grain employes. At this time, Mr. Russell Hunt, an hourly rated employe of the Continental Grain Company was assigned to the temporary vacancy of Mr. Finn as chief weighman.

When this change was made a protest was made to Mr. E. A. Manetta, Norfolk & Western Personnel Officer. Mr. Manetta investigated the dispute and we agreed, in conference, that Mr. Finn could work as truck dump weighman until his health improved so that he could return to his regular position of chief weighman. This understanding was subject to the approval of the other employes covered by our agreement. They agreed to same as outlined.

On April 5, 1959, Mr. Finn called General Chairman A. C. Ludwick and advised that he had been instructed to go to the Company doctor for a physical examination and that his salary would be discontinued and he would be paid on an hourly rate if he failed to pass an examination.

On April 6, 1959, a conference was held with Mr. E. A. Manetta, and General Chairman Ludwick, and Mr. Manetta agreed to make an investigation of this dispute.

Mr. Finn was examined by the company doctor, who claimed he was still unable to return to his regular position of chief weighman. Mr. Finn was changed from a salary to an hourly rate on April 20, 1959 and Mr. W. Russell Hunt was assigned to take over Mr. Finn's temporary vacancy of chief weigh

man.

On April 21, 1959 Mr. E. A. Manetta telephoned the general chairman and advised that the Continental Grain Company wanted to swap the truck dump weighman's position, covered by the operating engineer's agreement, for our position of chief weighman. This was not agreeable, and Mr. Manetta agreed to arrange a conference with the Grain Elevator Company's management for us to work out some agreement or understanding. The conference was never arranged.

On April 28, 1959, and May 18, 1959, Mr. Manetta again suggested, in telephone conversation, that we agree to swap the said positions.

Mr. Walter Finn, chief weighman, died on March 10, 1960, and a request was made to Mr. H. E. Sutton, general foreman-piers, to advertise the chief weighman's position, under the provisions of Rule 14 and Rule 1, as a permanent position on March 22, 1960.

This request was declined by Mr. H. E. Sutton by letter dated May 20, 1960. An appeal notice was served on Mr. Sutton, General Foreman, Piers, on June 10, 1960, and the case appealed to Mr. R. R. McDaniel, Master Mechanic, on June 10, 1960 and then with Mr. C. E. Pond, General Superintendent Motive Power, on August 6, 1960 and no satisfactory adjustment was made.

On the effective date of the controlling agreement, the following employes were working with seniority dates as follows:

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It must be understood that the above named employes only hold seniority rights on the group of position they held on the effective date of the controlling agreement. They do not have the right to make application for bulletined positions held by employes covered by the operating engineers' agreement.

POSITION OF EMPLOYES: The position of chief weighman, formerly held by Mr. Walter M. Finn, now deceased, is a position governed by Rule No. 1 of the controlling agreement.

Rule No. 14 provides that any position held by the employes named in Rule 1, that become vacant, must be advertised to the employes named in Rule No. 1.

That accordingly the carrier be ordered to advertise the chief weighman's position to the employes named in Rule No. 1.

CARRIER'S STATEMENT OF FACTS: A lease was signed between the Norfolk and Western Railway Company, hereinafter called carrier, and the: Continental Grain Company, hereinafter called Grain Company, dated April 29, 1952, leasing the grain elevators, belonging to the carrier, located in Norfolk, Virginia, for a period of one (1) year and continuing thereafter.

At the time of signing the lease, there were twelve (12) miscellaneous employes employed by the carrier at the grain elevators that were not covered by any labor agreement. The lease stipulated that the carrier would continue to employ, pay and furnish these twelve (12) employes to the grain company for performance of work at the grain elevators. Under the lease, the carrier did not, nor does not now, have the right to replace any of these miscellaneous employes upon termination of their service by retirement or otherwise. The grain company has that right. See excerpts from the lease between the carrier and the grain company.

The International Union of Operating Engineers, hereinafter called operating engineers, was certified by the National Labor Relations Board, November 19, 1953, to represent all employes at the grain elevators with the exception of those employes on the carrier's payroll.

On June 8, 1954, The International Brotherhood of Firemen and Oilers, Helpers, Roundhouse and Railway Shop Laborers, hereinafter called firemen and oilers, was certified by the National Mediation Board to represent a group of seven (7) miscellaneous employes at the grain elevators. W. M. Finn, weighman, was one of the group certified by the Mediation Board.

On October 31, 1955, W. R. Hunt, a member of the operating engineers, was appointed chief weighman due to Finn being ill, having suffered a severe heart attack. Upon returning to work January 2, 1956, Finn was not able to reassume the duties and responsiiblities of chief weighman. He was assigned to the scale room where he assisted Hunt. The grain company, in appreciation of Finn's long and faithful service, continued to pay him his former rate. See letter dated January 4, 1960, Paragraphs 1, 2 and 3, from Mr. Charles H. Ross, Office Manager, Continental Grain Company to Mr. Albert Holt (Elevator Superintendent) Grain Company. See affidavit of Dr. Wallace Spigel, W. M. Finn's personal physician. See affidavit of Mr. Charles H. Ross. See affidavit of Mr. W. R. Hunt, chief weighman. See affidavit of Mr. Albert Holt.

The effective date of the initial agreement between the operating engineers. and the grain company was January 14, 1954. See protest, paragraph 4, dated September 21, 1961, from operating engineers signed by Mr. A. N. Steiner, Business Manager.

An agreement was negotiated between the firemen and oilers and the carrier and submitted to the grain company for approval prior to its signa

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