(Advance copy. The usual printed copies will be sent later.)
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6444
I
SECOND DIVISION Docket No. 6236
2-N&W-CM-'78
The Second Division consisted of the regular members and in !
addition Referee Irving R. Shapiro when award wasdrendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Norfolk and Western Railway Company
( (formerly New York, Chicago and St. Louis Railroad)
r
Dispute: Claim of Emgloyes: I
_ i
I
(1) That under the current working applicable agreement Carman Edwin
Shultz was unjustly dealt with when he was held out of service prior
to the investigation, and, consequently, was unjustly charged in
an investigation, conducted in the office of the General Foreman,
Madison, Illinois Yard, on Monday, April 20, 1970, and discharged
from service upon receipt of letter under date of May 11, 1970.
(2) That accordingly the Carrier be ordered to immediately restore
Carman
Edwin Shultz
to service and to his former position, with
seniority unimpaired, fringe benefits; and that the Carrier pay
Carman Edwin Shultz eight (8) hours at pro-rata rate of pay of his
former position for April 9, 1970 and for each work day thereafter
until he is restored to service and in addition to the money amounts
claimed herein, the Carrier shall pay Carman Shultz an additional i
67, per annum compounded annually on the anniversary date of. claim.
i
Findings:
i
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.'
y
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein. !
i
i
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was dismissed from Carrier's
employment.
He was alleged to have
violated Rule G. of the Operating Rules of the Carrier which read in part:
"The use of intoxicants by employees subject to duty ...
is prohibited."
i
Form 1 Award No. 6444
Page 2 Docket No. 6236 - 1
2-N&W-CH-1 73
Claimant was afforded a hearing pursuant to Rule 33 of the Controlling
Agreement, at the conclusion of which he agreed that it had been fairly conducted.
Petitioner vigorously sought to overcome the testimony of Carrier witnesses
and the damaging admissions of the Claimant himself. This Board has long bee*
kuided by the principles set forth in First Division Award 16785 (Loring) as follows:
"In these investigations as to whether a discharge was wrongful,
the Carifer is not bound to prove justification beyond a
reasonable doubt as in a criminal case or even by a preponderance
of evidence as does the party having the burden of proof in a
civil case. The rule is that there must be substantial evidence
in support of the Carrier's action."
The Supreme Court of the United States enunciated the substantial evidence I .
rule. It stated:
· "Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. (Consol.
Ed. Co. vs.
Labor Board
305 U. S. 197, 229)"
We have consistently asserted our concern
for
the need to secure and retair
the public's faith in and continued patronage of rail transportation. At stake is
the livelihood and welfare of a great many people. To this end we have afforded
reasonable latitude to carriers in their administration of discipline of employees
in an effort to assure proper, safe, efficient, and economical operation. We have
held, in Awards too numerous to cite, that we would not substitute our judgment for
the findings of the appropriate carrier officer, due process
being
satisfied,
unless
there is a clear~showing that the action taken was an arbitrary, capricious,
unreasonable, or excessive exercise of discretion.
The record herein discloses that Carrier satisfied the evidentlary require-
ments of the above quoted rule of law. With rare exception, all Divisions of this Board
have sustained the dismissal of employes who have shown the lack of judgment of
appearing for work in a condition which could endanger his own safety, that of fellow
workers;- and potential passengers, in addition to the property of the employer and that of its customers. (See Award 5522) Claimant's conduct on April 19, 1970 was.-
of such nature. Consistent with the above reviewed concepts, we have ruled that
appeals for consideration of a Claimant's length of service be dealt with on the
property. In the very few instances where such applications were given favorable
treatment, the facts adduced from the record were clearly distinguishable from
those before us herein.
A WA R D
Claim Denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
teo
Dated at Chicago, Illinois, this 16th day of February, 1973. . , _ i