Form 1 NATIONAL RAILROAD ADJUST1.,-',11?T BOARD Award No.
7187
SECOND DIMS LO:'j'. Docket No.
7028
2-C&NW-CM-'
76
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr., when award was rendered.
( System Federation No.
76,
.Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute:. ( (Carmen)
(
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Freight Car Welder, James A. Balom was unjustly dismissed from
service on February
19, 1975.
2. Freight Car Welder ~-'ames A. Balom was erroneously charged with
being under the influence of alcohol while on duty January
8, 1975.
3.
That the Chicago ancL North Western Transportation Company be
ordered to reinstate! Mr. Balom for all time lost at eight hours
per day, with seniority unimpaired, plus any other benefits he
would be entitled to as per Rule
35.
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 Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was dismissed from service on February
19, 1975,
for "your
responsibility for violation of Rule G in that you were under the influence
of alcohol while on duty JanuELry
8, 1975".
The first paragraph of RULle G of the General Regulations and Safety
Rules reads as follows:
"The use of alcoholic: beverages or narcotics by employes
subject to duty is prohibited. Being under the influence
of alcoholic beverages or narcotics while on duty or on
company property is prohibited. The use or possession of
alcoholic beverages or narcotics while on duty or on
company property is prohibited."
Form 1 Award No.
7187
Page 2 Docket No.
7028
2-C&NW-CM- ° t,
6
The Organization's first defense is that the claimant was not afforded
a fair and impartial hearing aye required by Rule
35
of the
controlling
Agreement in that the Manager, Car Department Passenger (1) initiated the
charge, (2) acted as a witness during the investigation, and
(3)
rendered
the decision and assessed the ;penalty;
Many previous Awards have explored and ruled on this question, but with
such a diversity of findings t.':zat this. Board determines that the particular
circumstances involved are of ,paramount importance, rather than a general
procedural rule which can be applied. In the present case, this Board finds
no fatal procedural defect, on two grounds. First, the Manager, Car Department
Passenger was acting in his proper supervisory capacity in relation to the
claimant when he initiated the charge and then later when he signed the
disciplinary notice. At the hearing, however, he was not the conducting
officer and he was only one of several witnesses. Except as to the introduction
of a written statement by another Garrier representative, no other claim was
made that the hearing itself Was other than fair and impartial.
Second, as will be shown below, in this matter there is virtually no
dispute as to the facts presented at the hearing. Thus, the claimant cannot
be said to be prejudiced as to the hearing itself.
As to the introduction of a sworn statement at the hearing without the
presence and testimony of the signer of the statement, this Board finds it
unnecessary to rule in view of its conclusions below.
What is basically at issue
in
this matter is the validity of the charge
leading to the claimant's dismissal, as weighed against the record presented
to this Board.
Drawn from the record of the investigative hearing, the following facts
in chronological sequence are undisputed:
Claimant had been drinking "beer and mostly beer" during much of the
night prior to the work day in question. At
8
a.m., he reported for duty
and performed his regular wor':z for four hours, without drawing any special
notice from his direct supervisors. At noontime, he was summoned to the
office and at least three of -the Carrier's officials (omitting for the moment
one whose impressions were reported through a statement) found by direct
observation that the claimant had extremely offensive breath indicative of
alcoholic intake, had bloodshot eyes, and spoke in a hesitant manner.
Claimant had been called to the office to discuss an unrelated previous
disciplinary matter.
Based on these facts, the Carrier dismissed the claimant from service
for being "under the influence of alcohol while on duty," as specified in
Rule G.
Form 1 Award No.
7187
Page
3
Docket No. 7028
2-C&NW-CM-'7F
The claimant in his defense freely admitted to having consumed a larn;e
quantity of alcoholic beverages the night before. He attributed bloodshot
eyes to a condition common among welders, and his slow speech to a nervousness
caused by his discussion of a previous disciplinary matter with his superiors.
The Carrier rests its case: solely on claimant's "being under the
influence" of alcoholic bevera_;es--nothing more. This Board does not dispute
the ability of supervisors without specialized medical training to recognize
this condition in an employee while at work. But what was actually observed
in this instance?
The pertinent definition of "influence" (from Webster's Third New
International Dictionary, 1971;1 is "the power or capacity of causing an
effect in indirect or intangible ways"; the Dictionary gives as the prime
example of this meaning, "under the influence of liquor".
There is no question that the claimant had been drinking prior to
reporting to duty; he admitted it. There is no doubt that his breath so
indicated. The observation of bloodshot eyes and slow speech does not seem
decisive as to "influence" at the time observed. The explanation given for
these conditions by the claimant may or may not have been valid but in any
case these are not conclusive.
What this Board does find conclusive is that claimant performed his
normal work for four hours, for which time no evidence was presented to
indicate that he was "under the influence". There was no evidence such as
frequently found in other instances of this kind--inability to follow
instructions, unsteady gait, uncharacteristically poor work, or simply
"laying down" on the job.
A parallel may be drawn: an employee may report to work after consuming
an enormous, highly spiced meal. His breath might be revolting, but his
work unaffected. He could not be said to be "under the influence" of his
hearty repast. Alternatively, the same well fed employee may come to work in
the same circumstances and immediately become violently sick to his stomach
and require medical attention. Clearly, in this case he is "under the
influence" of his feast.
This Board finds, in sum, that the record fails to prove that the
claimant was guilty of a violation of the prohibition in the second sentence
of Rule G. The claimant is to be restored to service with seniority
unimpaired. He shall be paid for all regular time lost, 1 ass any and all
earnings from other sources during the same period. On this point the Board
follows the reasoning of AwarcL No.
1638
(Carter). Further, payment for time
lost, if achy, shall not be made unless claimant accepts the offered reinstatement to work with Carrier.
Form 1
page
A W A R D
Claim is sustained as per Findings.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 7187
Docket No. 7028
2-C&NGT-CM-
f
r6
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
74
By
Rotmarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 30th day of November,
1976.