Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7858
SECOND DIVISION Docket No.
7672
2-WT-CM-'79
The Second Division consisted of the regular members and in
addition Referee James F. Sceaxce when award was rendered.
( System Federation No. 106, Railway Employes'
( Department, A. F. of L. - C. I 0.
Parties to Dispute: ( (Carmen)
(
( Washington Terminal Company
Dispute: Claim of Employes:
1. That the Washington Terminal Company violated the controlling
agreement when they removed l41axy E. Jones from service January 12,
1977
and suspended hex from service fox six working, days.
2. That accordingly the Washington Terminal Company be ordered to
compensate Claimant Mary E. Jones fox six working days she was
caused to lose by this unjust suspension.
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 ox 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.
The claimant while on duty, fell and struck her chin and right arm.
While under treatment for small lacerations, indirect testimony was offered
that the nurse detected the odor of alcohol in addition to slurred speech
and incoherence. The claimant soon after :net with two foremen. The claimant
refused to take a sobriety test. Both foremen testified they were under
the opinion that the claimant -v,-as, :in fact, intoxicated. The claimant was
then removed frarin service .pending an investigation. As a result, the
Carrier assessed the claimant a 10-day calendar day (six working days'
suspens3_on).
There is only one procedural issue. The organization argues the
claimant's case was .prejudiced when, after the
investigation
during the
appeal process, the company refused to provide a copy of the nurse's report
of the claimant's injury. The company counters by referring to the Hearing
officer's direct invitation to the Union .Representative to call the nurse
Foam 1
Page 2
as a witness during the hearing.
Award No,
7858
Docket 130,
7672
2-WT-CM-179
The invitation was declined. While the
organization should have requested the testimony of the nurse during the
investigation, if they felt it relevant, we feel compelled to caution
the Carrier that under different circumstances a refusal to disclose direct
evidence that may b e relevant to a claimant's case may be considered
prejudicial.
Regarding the merits, the Organization contends the claimant was
actually disciplined for sustaining an injury. We find no evidence to
this effect. To the contrary, we fend there is substantial evidence to
uphold the Carrier's finding the claimant was intoxicated while on duty.
In light of the evidence we do not find the Carrier's assessment of a six
actual working day suspension arbitrary or capricious.
A W A R D
The Claim i s d.eniecl..
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL BA1ZROAD ADJUSITFF'NT BOARD
By Order of Second Division
U,0-PT-'o-Marie Brasch Administrative Assistant Dated at Chicago, Illinois, this 28th day of February, 1979.