Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6754
 SECOND DIVISION Docket No. 6541
 2-MP-CM-'74



Parties~to Dispute: ( ~ (Carmen)
Dispute: Claim of Employes:
Missouri Pacific Railroad Company






b. Retain his seniorityrights unimpaired; .

 e. Made whole for all vacation rights;
d. 'Made whole for all health and welfare and insurance
 benefits; -

Findings:
The Second Division of the Adjustment Board, upon the whole record sad all the evidence, finds that:

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 Board has.jurisdiction aver the
 dispute involved herein. ,.

 Parties to said dispute waived right of appearance at hearing thereon.
 Form 1 Award No. 6754
 Page 2 Docket No. 6541
 2-MP-CM-'?4

 Claimant with six years of service, thellast two as a journeyman carman, was working the third trick 11:00 P.M. to 7:00 A.M. on May 15, 19'72 when he was suspended from service at 1:30 A.M. pending investigation for violation of Rule G. Rule 32 (a) provides for such action, "in a proper case". Rule 32 (d) provides that If the charge is not sustained, the employe's record, "shall be cleared o8 the discipline; if suspended or dismissed, the employe shall be reinstated to his former position,---. and shall be compensated for the wage loss, if air suffered." Rule G states: "The use of intoxicants or narcotics is prohibited. Possession of intoxicants or narcotics while on duty is prohibited." The notice for hearing stated as to the charge against claimant: "--- for formal investigation to determine the facts and place responsibility if any, in connection with your being on duty and in violation of General Rule G about 11:50 P.M. May 15, 1972." After hearing, claimant was dismissed from service, "account yon being on duty in violation of General Rule G---about 11:50 P.M.., May 15, 1972 ---." On March 12, 1973, the Carrier offered to restore claimant to service without back pay on a leniency basis. This wan declined because claimant insisted that he was innocent of the charge. By letter dated March 30, 1973, the claimant was notified as follows: "Believing that you have been sufficiently disciplined,---you are hereby reinstated--as a Carman with seniority rights unimpaired." Claimant resumed service on April 3, 1973, reserving his right to appeal to this Board.
charge was promptbd by what the Carrier's supervisors considered to be
 unusual conduct oftthe claimant on the night in question. They seem
 to agree that claimant had been performing his duties, and that he
 denied use of intoxicants prior to reporting for work or on the fob, when
 he was questioned onthat night. Carrier's Exhibit "N", letter dated
 October 16, 192 from the Director of Labor Relations, in denying the
 claim on the property stated in part: "The transcript of investigation
 contains substantial evidence to support the charge preferred against
 Trevino that his conduct while on duty was not normal which was
 ttributed to the use of intoxicants. Underlining added. This
 is not a charge~of use or possession of intoxicants. Therefore, we
 ,have scrutinized the transcript of the testimony of the witnesses
 to determine whether or not there was substantial evidence of claimant's
 conduct sufficient to conclude that he had used intoxicants prior to
 reporting for or while on duty. In doing so, we have been mindful of
 the policy that this Board will not substitute its judgment for that
 of the Hearing Officer with regard to the credibility of witnesses.

 It the start of the Hearing claimant testified that he received proper notice, understood the purpose of the investigation and was ready to proceed. Adjournments had been granted so that claimant could be properly represented andpproduce witnesses. At the conclusion of the Hearing claimant testified that he had been afforded the opportunity to make a full statement and to produce any evidence he desired. We find that the Hearing wan donducted fairly and impartially.





























. At the yard, the witness talked with Trevino about the men not
























Form 1 Award No. 6754
 Page 4 Docket No. 6541
 2-MP-CMj' 74
 When questioned further by the Hearing Officer, the witness stated
 that Trevino had worked !or him for two and one half years and that prior
 to this night there was no trouble with Trevino understanding and
 carrying out orders; that Trevino's speech was different this night;
 that he anelled the odor of alcohol the first time he spoke to him in
 the yard; that Trevino said he had not been drinking; and that Trevino's
 eyes were glossy and-he was sweating.
 On cross examination, the witness stated that Trevino was not in
 condition to perform his work that night. When questioned further, the
 witness stated that Trevino did perform his work after discussion, and
 that Trevino did perform the work he was assigned to do. When.asked,
 the witness described Trevino's condition as, "-- appeared to me to be
 very nervous and reluctant to accept the instructions. He persisted in
 discussing the matter and he cast a feeling of mistrust against the
 other men. Specifically henry Dunn." ?he witness also stated that his
 trick ended at 12:30 A.M.; that he first saw and spoke with Trevino at
 11:0 P.M.; that after 12x30 A.M, the carmen would be under the control
 of a leadman, Trevino on this night, and the Yardmaster)* that he did not
 know what kind o! alcolol he smelled on Trevino and that he did not
 see him consume any intoxicating beverage on that night. The witness
 also stated that Trevino had an accent which could have been added to
 if he was a little irritated or excited. When questioned by another
 union representative the witness said that he had gone out to the yard
after TreTino's second phone call before he spoke on the phone with ·.rf-rl
 the General Car Foreman, and that Larry Dean requested to lay off at
 that time.
 The General Car Foreman was the next witness. He stated, in
 substance, that: He spoke with the Relief Car Foreman on the phone at
 11:15 P.M* and came to the yard because the Relief Foreman said that;
 "there seemed to be some point of disorganization", and felt that it
 would-be necessary for him to come to the yard. He observed Trevino
 return from an oil station and service journal boxes for approximately
 three car lengths. Track 5 was moved northward and Trevino walked tic
 catch up with where he had stepped working boxes. Trevino approached
 where the witness wan standing, they spoke briefly, Trevino about 4
 to 5 feet of the witness. When Trevino went to fill his oil can again,
 the witness examined the boxes worked on by Trevino for about two car
 lengths and, "detected no excessive amount of eil applied." Trevino
 shouted to the witness., "to go ahead and inspect his boxes; that I
 would find nothing wrong with them." This was not Trevino's usual
 action. The witness detected the odor of alcohol on Trevino when they
 had spoken. When Trevino returned td his work, the witness told
 Trevino to go to the yard office. Trevino said he had to contact the
 ?srdmaster to find out whether, "to.contirnie his work or what to do."
 The witness considered this to be argumentative and told Trevino to go
 to the yard office immediately no matter what the Yardmaster told his.
 Trevino west to the yard office.
 Farm 1 Award loo. 6754
 Page 5 Docket Ho. 6541

When the witness arrived at the yard office, Trevino was there with the Yardmaster. The Trainmaster was telephoned at his home to also coma to the yard office. The witness considered it unusual when Trevino insisted on telephoning his-union representa5iwe; when Trevino said in an emphatic way that he was going for a drink of water, the witness considered it to be unusual and obnoxious. The witness end the Trainmaster asked Trevino questions which he would not answer while rafting for. his union representative to arrive. The Trainmaster decided to remove Trevino from service after the Relief and General Car Foreman said that they had detected the odor of alcohol on Mr. Trevino.

 On cross examination, the witness stated.`.hhat Trevino usually carried out instructions without conflict but that on this occasion he acted differently. Further, this witness said that he was called at' 11:10 PM, by the Belief Car Foreman. He returned the call at 11:15 PA, and was told that Trevino had called the Relief Foreman. twice, and that the Foreman had observed Trevino is the five minute interval between 11:10 PA, and 11:15 P.M. This witness did not see Trevino consume any intoxicating beverage and Trevino denied drinking or taking medication in the past 7 days. This witness stated that he observed Trevino in the car yard andthat he did not weave or sway when he walked but that he was sweaty and wide eyed, not his usual appearance.

 The next witness. was the Trainmaster who testified in substance that: Trevino would not answer questions while waiting for the arrival of his anion representative and that the witness considered Treviao's manner to be sarcastic. The Relief and General Car Foreman had smelled alcohol on Trevino's breath when they were in the train yard. The witness did not smell alcohol on Trevino's breath because he had a cold. The witness did not observe Trevino at work bit removed him from service for his safety and that of fellow employes after observing him in the office.

 Trevino then testified is substance as follows: He made the call regarding the absence of a, fourth man, was told the position was blanked and to do the best they could. Trevino reported this to the 7ardmaster. He flues told the two caraen that he was the lead man but they laughed at ham. Trevino called back the Relief Foreman telling him what happened and that the carmen could not come to the phonebbecauae they had gone out to the yard. When the Belie= Foreman came to~the yard Trevino discussed the situation with him, they walked to the other carman, the Foreman asked Trevino if he had been drinking and he said, "no". Trevino then instructed the two carmen on their work, the placing of a blue flag and blue light at the north end of the train, checked with the Yardmaster the additional track-to be worked and then started to work hoses. The General Foreman arrived at this time and started to check the hoses. Trevino told him they were in good shape and not to trouble himself but the Foremen replied that he would check them if he wanted to. The Foreman they asked whatvthe trouble was to which Trevino
 Form 1 Award No. 6754
 Page 6 Docket No. 6541
 2-MP-CM-174

replied that the trouble had been taken care of and that he had a train to get out by 12:35 A.M., and that they were doing the best they could with one man short: The General Car Foreman told Trevino to go to the office and Trevino said he couldn't get the train out on time if he went and that he was responsible to the Yardmaster.

 At the office, Trevino was callfng his representative when the General Car Foreman threatened to get him for insubordination if he didn't come right in. Trevino asked if he could get a drink of~*water, the Trainmaster said no, but Trevino went for the drink .anyway. Trevino wanted to wait until his representative arrived but was told he did not need him at that time. When asked to do so, Trevino gave his birth date correctly but said he was not intelligent enough to recite the whole alphabet correctly. When asked what' he did not speak clear, Trevino said he was Mexican and stuttered when exdited. He could not give his seniority date but said they had a record of it, at which tube the Trainmaster said he was calling an investigation for insubordination. Trevino denied drinking alcohol and said that they might have smelled his shaving lotion.

 The next witness was the Yardmaster called by Trevino, whosematerial testimony in substance was that: Trevino had carried out the assignment he gave him; that he talked with Trevino in his office and could not tell that Trevino vas intoxicated and that he did not smell alcohol on Trevino that night.

 The next witness called by Trevino was the PICL Clerk who testified that: He talkdd twice with Trevino on the nite in question, once at 4-5 feet-shortly after 11:00 P,M,; the second time, "a matter of one foot or one and a half feet between 12 and 12:30 AM." He stated that in his opinion, after observing him, Treviao was not under the influence of intoxicants; also that he did not smell alcohol on Trevino's breath, and that he did not nee Trevino,take any alcohol drink that night.

 The next witness called by Trevino was the carman who wan called in to relieve Trevino that night. He.testified is substance that: % reported at 1:00 A.M,., talked for 15 minutes with Trevino within 2 feet of him. He did not smell alcohol on Trevino. In the Fitness' opinion Trevino was not under the influence of intoxicants and he did not see Trevino take a drink of any kind. The witness stated further that Trevino gave him the line up of what wan to be done, told the witness he was to take his place, loaned him his packing knife and flashlight. The witness stated that the only difference in Tret~no that night was that he was nervous but, when asked specifically, replied that Trevino did not have a storey eyed look.
 Form 1 Award No. 6754
 pie 7 Docket No. 6541
 2-MP-CM-'74

 ' The next witness called by Trevino was the Union representative who arrived at the office at 12:30 A.M, on the night in question. In answer to specific questions, this witness stated that he was with Trevino for one hour sad talked to him within one foot; Trevino's eyes were not atarey-looked no different that any other time; did not see him consume any alcohol.. He stated that Trevino could not have been drinkingaand he fail to notice it, and was absolutely sure that Trevino did not have the odor of alcohol on him that nit.

 The testimony has been considered and set forth in detail because we do not believe that the Carrier has set forth substantial evidence sufficient to sustain the burden of proof. The Carrier's Trainmaster could not smell alcohol on Trevino and the Carrier's Yardmaster did not smell alcohol on Trevino* nor did the Clerk, the relief carsaa or the union repreaentatigs. No one saw Trevino drink an alcoholic beverage sad he denied taking any alcoholic drinks before coming to work or on the fob. There was no testimony that containers of an alcoholic beverage were seen. No one testified that Trevino wa7.ked in any manner suggestive of a man who had been drinking an alcoholic beverage. The Relief tend General Car Foreman said they smelled alcohol on Trevino's breath between ll:f)0 to 11:30 PJ4, in the yard but did not testify that they smelled it in the office within one. halt hour later. The General Car Foreman testified that he checked the work Trevino did and found it to be correctly done. ?here is conflicting evidence as to the atarey eyed lmok of Trevino,, and sweating in Texas in Mar would not be unusual.

 The testimony does not provide the proof required for s violation of Ring G, nor is there present in the transcript the testimony that usually is stated by a layman to describe as individual who has violated Role G, Second Division Awards 6373, 6394, 5925. There is no Testimony that Trevino had imbibed alcoholic beverage anywhere before reporting to work. His namesake in professional golf has moray times been described as unusual or unorthodox in his behavior but never has his conduct been "attributed to drinking alcoholic beverage in professional competition. There may have bees conduct or an attitude that was different and annoying to the General Car Foreman and to the Trainmaster who were called from their homes at midnight but not sufficient to justify removal from service, investigation or dismissal for violation of Bole G.

 In light of the Carrier's failure to submit substantial evidence of the violation as charged, the discipline was arbitrary and-capricious.

 The remedy sought in the claim, item 2b. was granted when claimant was restored to service. As to items 2c., d., sad e., we shall follow prior Awards which have denied relief because it is not provided for in the Agreement. Role 32 (d) specifically limits relief in the circumstances of this case to compensation for wage loss suffered: See Awards Second Division 3883', X793, 45329 x+557, , and Third Division 14.97, 1802, 17597·