Award No. 5298 Docket No. 4990
2-S&NW-MA'67The Second Division consisted of the regular members and in
addition Referee Harold W. Weston when award was rendered.
EMPLOYES' STATEMENT OF FACTS: Mr. L. Lutz hereinafter referred to as Claimant, was employed as a Machinist by the Chicago and North Western Railway Company, hereinafter referred to as the Carrier, on March 17, 1947 at Chicago, Illinois. On April 2, 1965, the claimant was notified to appear on April 6, 1965, for investigation on the charge that he reported for duty under the influence of liquor. A copy of the notice is attached and identified as Exhibit A.
The investigation was held as scheduled. A copy of the investigation record is attached and identified as Exhibit B.
In a letter dated April 7, 1965, the claimant was notified that he was disciplined by dismissal from service. A copy of the discipline notice is attached and identified as Exhibit C.
During the investigation the claimant presented a statement from his Doctor stating that he (the Claimant) was under medication on April 2, 1965.
Attention of this Board is called to the fact, as set forth at page 3 of the transcript, that on the date immediately prior to April 2, 1965, or April 1, 1965, Mr. Lutz had also appeared for work under the influence of liquor, and on that date he had been permitted to go home at his own request. It is therefore apparent that April 2, 1965 was not an isolated instance insofar as he is, concerned.
The carrier therefore submits that claimant's responsibility for the incident for which investigation was completely and conclusively established at the investigation. The carrier further submits that reporting for duty in an intoxicated condition is clearly justifiable ground for dismissal. The carrier therefore submits that the claim in this case should be denied in its entirety..
The Statement of Claim, in addition to reinstatement with pay for time lost, also requests payment of "* * * six percent (6%) interest for all wages deprived of. Also, fringe benefits (vacations, holiday, premiums for hospital, surgical, medical and group lfe insurance) * * *."
Under this rule the claimant would be entitled only to time lost less earnings in outside employment (see Second Division Award No. 1638 involving the same rule and the same parties), if he were entitled to reinstatement, which he is not. It will be noted that the rule makes no provisions for payment of six percent interest or the fringe benefits referred to in the Statement of Claim. In this respect, the claim in this case constitutes in part a request for a new rule, which is beyond the jurisdiction of this Board. The Board's authority is limited to interpretation of existing rules, and does not extend to promulgating new rules under the guise of interpretation of existing rules. See Second Division Awards Nos. 3883 and 4793.
All information contained herein previously has been submitted to the employes during the course of the handling of this case on the property and is hereby made a part of the particular question here in dispute.
Oral hearing before the Second Division is waived, provided the employes also waive hearing, and with the understanding that the carrier will have the opportunity to file a written reply to the employes' submission, and if a referee is appointed, the carrier will be given a hearing before the Division setting with a referee. (Exhibts Not Reproduced)
dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant, a machinist with eighteen years service, was dismissed for reporting under the influence of liquor on April 2, 1965.
The record is free of material procedural defect. Claimant received proper notice of the charges against him, was duly represented at the hearing held in this matter and was afforded a fair opportunity to present his case.
Carrier's finding of fact are supported by competent credible evidence, consisting of testimony by General Foreman Donati and Wollard as well as Foreman Burney that Claimant was unstable and slurred of speech and appeared to be under the influence of liquor on the day in question. Wollard testified further that he could detect "an odor of some sort of alcohol smell" on Claimant's breath when three feet away from him.
We will not disturb Carrier's findings of fact since they are supported by credible, though controverted, evidence. As numerous awards point out, it is not this Board's function to weight conflicting evidence and determine credibility. Claimant's physician's statement is not impressive, particularly since it was not made until over half a year after the incident in question had occurred.
With respect to the degree of discipline administered in this case, we are of the opinion that the record is not adequate, in view of Claimant's eighteen years service and the absence of any substantial showing of an unsatisfactory prior record of service, to warrant such extreme discipline as dismissal. The only reference to Claimant's prior record is general testimony by Donati that Claimant came to work "in the same condition" on the day prior to that now in question. On that occasion, he was allowed to go home at his own request without, so far as the evidence shows., even a warning or reprimand. There is no indication that Claimant was disciplined or engaged in any other misconduct during his eighteen years in Carrier's employ.
In the light of the foregoing discussion, we will direct Carrier to offer Claimant immediately reinstatement to the position he occupied at the time of his discharge, with seniority and vacation rights unimpaired but without backpay. In directing reinstatement, we have considered Carrier's allegation that two of Claimant's fellow-workers threatened to go home if he was assigned to work with the man April 2, 1965; the point is unimpressive, par-