Award No. 5657 Docket No. 5565 2-SCL-CM= 69
The Second Division consisted of the regular members and in
addition Referee A. Langley Coffey when award was rendered.
SYSTEM FEDERATION NO. 39, RAILWAY EMPLOYES'.,
DEPARTMENT, A. F. of L. - C. I. O. (Carmen).
1. That under the current applicable agreement Carman helper H. G. Brown was unjustly given an investigaition in the Master Mechanic's office, Jacksonville Shop, Jacksonville, Florida, on July' 21, 1966 and was dismissed from service August 15; 1966.
EMPLOYES' STATEMENT OF FACTS: H. G. Brown, hereinafter referred to as the claimant has been employed by the Seaboard Air Line Railroad Company hereinafter referred to as the Carrier, for approximately fifteen (15) years as a carman helper at Baldwin, Florida, his regular assigned hours being third shift, 11:00 P. M. to 7:00 A. M., Tuesday thru Saturday with rest days Sunday and Monday. Claimant was notified by letter dated June 27, 1966 to appear for formal investigation on July 5, 1966. The charges as fol, lows: "Failure to protect your 11:00 P.M. assignment as car oiler at Baldwin, Fla. on June 23, 1966 and conduct unbecoming an employe." A copy of said notice is submitted and identified as Exhibit (A). Amended Charges: Charged with violation of Rule 19, failure to properly protect assignment during the hours of 11:00 P. M. to 7:00 A. M. June 23, 1966, conduct unbecoming an employe in an alleged intoxicated condition on company property. A copy of said notice is submitted and identified as Exhibit (B). On July 21, 1966 claimant was given an investigation, copy of which is submitted as Exhibit (C). On August 15, 1966 claimant received notice of his dismissal from service, a copy of which is submitted and identified as Exhibit (D). This dispute has been properly handled with all Carrier Officers authorized to handle disputes of this type with the result that all of them have declined to adjust it. The Agreement effective March 10, 1923, as subsequently amended is controlling.
Under agreed to understanding with the Shop Crafts in the application of discipline under Rule 33 such employes can only be reprimanded or dismissed.
POSITION OF CARRIER: It is noted that the claim specified in the October 2, 1967 letter of notification to the Second Division from President Fox of Railway Employes' Department was that Carman Helper Brown "was unjustly given an investigation" whereas the claim specified by the General Chairman in the handling on the property was that Mr. Brown was "unjustly dealt with by being dismissed from the service." Mr. Brown was given a formal investigation in accordance with the provisions of Rule 33 and was, therefore, not unjustly given an investigation.
The transcript of the investigation and the record in this case conclusively show that Mr. Brown was properly dismissed from the service and, as held in Second Division Award 3933, "Under these conditions the Carrier's action was justified, and claimant should not be reinstated to the detriment of another employe."
If there was ever a case where an employe was justifiably dismissed from the service this is it. As held in Second Division Award 1814, the action of the Carrier in this case was motivated by necessity and not by action that could be deemed arbitrary or capricious. Also appropriate is Second Division Award 1541 which held that, "Claimant had been dealt with very leniently in the past and could not always expect Carrier to overlook his neglect of duty." Also see Second Division Awards 2044 and 1666.
The position of the Organization was fully answered and refuted by the Director of Personnel in his letters of January 25, 1967 and June 14, 1967, with no denial or rebuttal thereof by the Organization. The evidence developed at the investigation was too conclusive as to Carman Helper Brown being in an intoxicated condition in his automobile on Company property at Baldwin at a time when he was assigned to be on duty and working to be successfully challenged. The record likewise conclusively shows that every effort had been previously made to straighten out Mr. Brown and make him a desirable and responsible employe, and that he was deserving of no more consideration. There can be no question about such efforts being made, as confirmation thereof was made by Local Chairman Higginbothom on Page 16 of the transcript of the investigation in his answer to question by Master Mechanic Alexander as follows:
Carrier, therefore, reiterates that its action in this case was fully justified, and the claim should accordingly be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Bcard has jurisdiction over the dispute involved herein.
This is a discipline case. The appeal is based on the claim that, on or about April 24, 1966, H. G. Brown, claimant, was wrongfully suspended and dismissed from service effective that date, after a formal investigation to develop the facts and place responsibility for Claimant not being on his assignment the night of June 23, 1966 at Baldwin, Florida.
Mr. Brown, a 15-year employe, about 40 years of age, hereafter referred to as Claimant, was regularly assigned to the third shift, 11:00 P. M. to 7:00 A. M., Tuesday through Saturday, as Car Oiler, Baldwin Shops, Seaboard Shop, Baldwin, Florida, on the date in question.
Claimant failed to show up for work at the starting time of his shift. Another employe found him about 11:15 P. M. in the front seat of his car, parked adjacent to the Car Inspector's office in the Yard, in a state of suspended or deadened sensibility. The employes "hollered at him and knocked his knees up against the steering wheel." He did not fully respond and the employe departed. Two other employes repeated the attempts to get Claimant on his feet within minutes of each other. He did not respond.
Claimant's supervisor, J. D. Ryan, after learning that Claimant had not reported for work and had ascertained the reason, went to the Yard Office and, at 11:35 P. M., called Foreman E. J. Oglesby to come out to the property. The Foreman arrived at 11:55 P. M. Claimant was still in his automobile stretched out on the front seat in the same dead stupor, his feet on the steering wheel or on the left side of the car and his head toward the opposite side. The Foreman also observed two pint whiskey bottles, two empty coca cola bottles, an empty glass, a spoon and a shotgun on the floor in the front part of the car.
The Foreman called for re-enforceanent. The Yardmaster was busy. Local Chairman W. W. Higginbothom came out at 12:40 A. M. Conditions had not changed. There was a strong odor of whiskey present. The Foreman called the Chairman's attention to the whiskey bottles on the floor. One was empty. The other had the remains of about 1/3 of a pint. "Calvert" was the name brand. Foreman Oglesby and Supervisor Ryan perceived by the sense of smell that it contained whiskey. Chairman Higginbothom declined the offer to smell the contents. The evidence was produced at the investigation.
The Chairman walked around to the right side of the car, opened the door and started shaking Claimant, called him, and slapped him on the shoulder. Claimant responded but remained on his back, "rolled his eyes back" and gazed upon his visitors. The Chairman asked Claimant if he was sick. He nodded in the affirmative. The Foreman told Claimant he was drunk and said, "I can't let you in that Yard in your condition, it is 1'2:45 A. M. and you are out of service." The Chairman interceded and asked the Foreman not to "pull him out of service." The Foreman instructed Claimant to put on his shoes, get up and see if he could walk. Claimant "got out and staggered possibly 20 or maybe as much as 30 feet from us and turned around and came back in his staggering or drunkard (sic) walk."
Claimant was intoxicated in Supervisor Ryan's opinion. He was "staggering" and was "incapacitated." The Supervisor knows that Claimant has a
"natural limp," ever since an automobile accident. The Supervisor has had instruction on different jobs and knows what to look for when a person is suspected of being under the influence of alcohol. In his opinion, Claimant was under the influence of whiskey, not drugs. Claimant "smelled of whiskey." Supervisor Ryan is not an authority on drugs.
The Foreman was convinced that Claimant was drunk. He explains: (tr. 17)
The Foreman, acting upon his own conviction, announced that he should call the Special Agent to remove Claimant from the property. The alternative would be to call the Highway Patrolman who was at a filling station nearby. The Foreman finally suggested that the better plan would be to call neither the Special Agent nor the Highway Patrolman if Chairman Higginbothom would agree to take Claimant off the property. The Chairman agreed. Whereupon, the Chairman got in the car with Claimant and drove off.
Chairman Higginbothom is of the opinion that Claimant was not drunk. No odor of whiskey was present. He saw Foreman Oglesby remove a bottle of "fluid," or "liquid" from Claimant's car, but he cannot "definitely state that that was whiskey." He doesn't recall that Foreman Oglesby asked him to smell the contents of the bottle. When he agreed to take Claimant off the propery, he didn't know then whether Claimant was drunk or not. There was "a possibility that the man was intoxicated." He did not learn all the details until later. The Chairman only agreed to take Claimant off the property, not to drive him home. Claimant kept assuring the Chairman that he was capable of driving his own automobile, that "he wasn't intoxicated." Accordingly, the Chairman left him at the home of Mr. Brown's friend, F. A. Harvey. Claimant Brown drove away in his automobile. "This friend carried me back to where my automobile was parked." The time was "around 1:00 A. M.'
Claimant Brown didn't go straight home. He went to T. J. Peterson's and procured some gasoline. Mr. Peterson is not in the employment of the railroad. He is in the business of raising livestock, hogs and cattle. Claimant and Mr. Peterson are intimate friends, "born and raised together," according to Mr. Peterson, who says that claimant is just like one of the family. "He eats with us, we are almost like brothers."
On the day in question, Claimant had been at the Peterson home from 1:00 o'clock in the afternoon until about 8:30 P. M. Mr. Peterson had Claimant "tend to the hogs" while Mr. Peterson was at his brother's that day. He "didn't stay there, but came back later on."
Before leaving his friend's home at about 8:30 P. M. on the eventful day, Claimant went to the medicine cabinet to get some pills to relieve a headache. He went onto work. When he arrived on the property a short time later, he says he felt sleepy and groggy; that he told soave men in the Car Inspector's Building that he was going out and go to sleep and for some of them to wake him up at 11:00 o'clock when they got off. He explains his condition and conduct on the night in question to a "discovery" made by him later. He does not fix the time of the "discovery" unless he means to connect it up with the trip to Mr. Peterson's to get gasoline, on his way home. The full effect of his explanation concerning his "discovery" follows:
Claimant denies that he was drunk. He did not have a drink before or after he came on the property. He did not stagger. The ground was rough. He naturally walks with a limp. He agreed to let Chairman Higginbothom drive his car off the property on Foreman Oglesby's orders. Chairman Higginbothom asked to drive the car, because if he didn't "they were going to call the Special Agent or the cops to come and get me, so he asked me to let him drive me off."
Claimant disclaimed any knowledge of the whiskey that had been removed from his car.
Mr. Peterson answers for the incriminating evidence concerning the whiskey that was found in Claimant's car and about the sleeping pills.
Mr. Peterson had borrowed Claimant's car the day before the night of June 23. He went to his brother's home. He bought a pint of "Calvert" whiskey. The two brothers drank part of it. Mr. Peterson forgot and left the whiskey in Claimant's car without Claimant's knowledge. It was late when Mr. Peterson returned the car to Claimant. He put the whiskey under the front seat and forgot to tell Claimant about it. "It slipped my mind." When Claimant came back to the Peterson home the next day, June 23, "it had done slipped my mind. I don't drink very much. Me and my brother just went off together and drank that whiskey. I just pushed it under the seat and forgot it."
"Q. There could have been a bottle in there, that you didn't see, under the seat?
Q. Also Mr. Peterson, you brought it out here that your wife keeps her sleeping pills in the same cabinet with your headache medicine ?
Q. After Mr. Brown explained what had happened to him, you are pretty familiar I assume with the reaction this medicine has on person taking it - after he explained what had hapepned to him would you say it would have the same effect on him as it did your wife ?
"Q. As I understand it, Mr. Peterson you told Mr. Brown to go in your medicine cabinet and take something for his headache, is that correct?
Q. Did you tell him what to take when you told him to go in there ?
Q. Wouldn't be unusual for him to go in your medicine cabinet and not even ask you what he was taking?
A. That's right. If I wasn't at home and he came by there and wanted something, he would go in there and get it.
Mr. Harvey says that when Claimant came to Mr. Harvey's home about 1:00 A. M. in the morning, in company with Chairman Higginbothom, Mr. Higginbothom inquired if Mr. Harvey thought Claimant appeared to be drunk. "I told him he didn't, to me, and he did not." Claimant got out of the car on the right hand side, walked around it and got in on the left hand side. He did not stagger. When Claimant drove away from Mr. Harvey's home, he did not "drive his car as an intoxicated person would." Claimant appeared to be "normal in every way." He did not "look like he was under any sedative or any drugs whatsoever."
A number of employes who had seen Claimant on the property about 9:00 P. M. on the night in question say that Claimant Brown was not intoxicated when they saw him at that hour. None witnessed him take a drink. He complained that he was not feeling good and was going to his car and lie down until time to go to work.
,Claimant has been ably represented at each stage of the investigation and on his appeal. The dispute was thoroughly investigated on oral hearing and has been carefully reviewed at each level of appeal on the property.
The facts of record, as shown above, are in material conflict. The Board rarely weighs such conflicts on appeals in discipline cases if the discipline does not appear to be manifestly unjust; but, this is one of he rare instances when it has done so.
Claimant was either dead drunk or the victim of a dead sleep brought on by medication inadvertently taken. Claimant, his "shop mates" and bosom friend, if their stories are credited, have successfully explained away Claimant's most unusual behavior. On the other hand, if the report by Carrier's officers, on his actions and conduct, is true, claimant was dead drunk. The circumstances prove him drunk.
Wherefore, it is the findings of the Board that the decision to terminate Claimant's tenure of employment with this Carrier should be and same will be sustained.