Form 1 NATIONAL RAILROAD ADJUSTMENT BOATED Award No.
7I+9I+
SECOND DIVISION Docket No.
7I+34
2-BIVI-FO-
t
78
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No.
7,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Firemen & Oilers)
(
( Burlington Northern Inc.
Dispute: Claim of Employer:
1. The Burlington Northern, Inc. unjustly, improperly and without a
fair and impartial investigation suspended Mr. T. C. Ricci from
service 15 days commencing October 1,
1975,
thxli October
15, 1975.
2. That accordingly, the Burlington Northern Inc. be ordered to make
Mr. T. C. Ricci whole, compensating him for all time lost at the
straight time Hostler's rate including fringe benefits, and in
addition any reference to this incident be stricken from his
personal record.
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 employer involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21,
193+.
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 eras suspended from service on October 1,
1975,
prior to a formal
investigative hearing; after such hearing on October
9, 1975,
the suspension
was directed b y the Carrier to be of
15
days' duration. Disciplinary action
by the Carrier was based on "violation of Rule 'G' of the Safety Rules of
Form
15001,
October 1,
1975,
as disclosed by investigation accorded you
October
9, 1975."
Carrier's Rule "G" reads in pertinent part:
"The use of alcoholic beverages or narcotics by employer
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 of possession of
alcoholic beverages or narcotics while on duty or on
company property is prohibited."
Form 1
Page 2
Award No.
7494
Docket No.
7434
2-BNI-FO-'78
The Board finds no substantive defects in the procedure followed by the
Carrier in making the charge against the Claimant or in its content of the
October
9, 1975,
hearing. The Organization claims that sufficient written
notice of the charge to the "appropriate local organization representatives"
was not given. However, Carrier's notice to the Claimant included reference
to copy for the appropriate representative. The Organization argument that
the charge presumed guilt of the Claimant is not well founded, as it was
made clear that the scheduled investigation was for the purpose of "determining
... responsibility". Finally, the hearing itself provided fall opportunity
for the defense of the Claimant by himself and hip representative.
The record shows that Carrier administered discipline based upon an
allegation that the Claimant had consumed a glass of beer some three hours
or more prior to reporting for duty as scheduled. That allegation was
based, first, on the obviously self-serving statement of another employe,
who himself was under investigation for his actions prior to reporting on
duty; and second, on what can only be found to be an intense "grilling" of
the Claimant in which he was reported to have stated that he had a glass
of beer at least three hours prior to reporting fox duty.
The Carrier had no independent observation of the Claimant prior to
duty. The Claimant has no disciplinary history. No direct appearance that
he had been drinking was claimed when he did report fox work. His socalled "admission" was made in the presence of three Carrier representatives
but with no representative of his own. And the employe who had been the
source of the original information failed to repeat it at the formal
investigation.
Burden of proof in disciplinary matters rests with the Carrier. In
the present instance, such proof eras notably lacking.
The Board will sustain the claim to the extent indicated in Rule 28
(g), which carries no reference to compensation for "fringe benefits".
A W A R D
Claim sustained to extent indicated in Findings.
NATIONAL RAILMAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
os maxie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of April,
1978.