Form 1 1VNAL RAILROAD ADJUSTMENT BARD Award No.
7937
SECOND DIVISION Docket No.
7721
14 A
1579
2-C&NW-CM-'
79
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The Seco~``~'Ji~flbri Jconsisted of the regular members and in
addition Referee Robert A. Franden 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 Inspector Steven J. Gross was unjustly withheld from
service beginning January 1,
1977,
and was subsequently dismissed
from service on January
19, 1977.
2. Freight Car Inspector Steven J. Gross was erroneously charged with
being under the influence of an alcoholic beverage when reporting
for duty on January 1,
1977.
3.
That the Chicago and North Western Transportation Company be ordered
to reinstate Freight Car Inspector Steven J. Gross, with seniority
unimpaired, and compensate him for all time lost, beginning
January 1,
1977,
as well as make him whole for any loss of benefits
he may have suffered during the time he was unjustly withheld from
service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier ox 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, 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 -was dischargad by Carr:_er following his allegedly reporting
for duty "under the influence of alcohol" on Flew Year's Eve - during his tour
of duty which extended into January 1,
1977.
The Organization argues that Carrier did not prove Claimant guilty of
the charge, which eras "being under the influence of an alcoholic beverage
when reporting for duty as a car inspector, Wolf Road, at 1:15 A.M..,
January 1,
177".
It is argued that none of the testimony of Carrier's
Form 1 Award No.
7937
Page 2 Docket No.
7721
. 2-c&2TW-cry-'
79
three witnesses established that Claimant's behavior and demeanor showed
that he was "under the influence". The Organization cites Second Division
Award
7187,
between these same parties, which held in relevant part:
"The pertinent definition of 'influence' (from Webster's
Third New International Dictionary., 1971) is 'the power
or capacity of causing an effect in indirect or intangible
wets'; the Dictionary gives as the prime example of this
meaning 'under the influence of liquors.
There is no question that the claimant had been drinking
prior 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 .
...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
the claimant was guilty of the prohibition in the second
sentence of Rule G. The claimant is to be returned to
service with seniority unimpaired. He shall be paid for
all regular time lost..."
Notwithstanding the fact that this decision eras cited by the Organization
during the handling on the property and in their submission, the Carrier
never chose to respond to it. Rather, in Carrier's very brief presentation
to this Board, both in their submission and rebuttal, they simply briefly
outlined the evidence in the transcript and concluded, without citing any
authority for such a conclusion, that the Claimant here was guilty of
a breach of Carrier's Rule G, after having been charged with "being under
the influence of an alcoholic beverage." Carrier's Rule G provides as follows:
Form l Award No,
7937
Page 3
Docket No.
7721
2-C&NW-CM-'79
"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
alocholic beverages or narcotics while on duty or on
Company property is prohibited."
Notwithstanding the brevity of Carrier's written presentation to this
Board, we have thoroughly reviewed the transcript of this case as well as
authority on the subject matter here involved. Claimant here was charged
only with being under the influence of an alcoholic beverage while on duty,
and in accordance -with well established principles, our review of the record
can extend no further than to determine whether substantial evidence exists
to support this charge, and this charge alone.
The evidence of record does indicate that Claimant admitted to having a
drink at dinner time. Other testimony of Carrier's operating department
officers indicates that Claimant's eyes were irritated, and there was an
odor of alcohol coming from Claimant's breath. Also, the General Car
Foreman stated he observed Claimant's speech was, at times, a bit slurry.
However, other than this evidence,, there does not seem to be any other symptoms
of mbeing under the influence" present in this case. For example, Carrier's
Trainznaster Wilkinson testified, in response to a question:
Was Mr. Doss stumbling or incoherent at the time you
interviewed him?
A, No, he wasn't stumbling or incoherent. His eyes
appeared to be very blood shot and he was very insistent
about the reason he was late for work."
Based on this, as well as other testimony, we conclude that there is
a sufficiency of substantial evidence in the transcript to establish the
fact that Claimant was, at the time of his confrontation, "under the
influence of an alcoholic beverage". While we do not quarrel with the
findings of Award 7187, , between these same parties, we find that in this
case, more evidence of probative value exists to establish the condition of
the Claimant. Notwithstanding the fact that Claimant's condition was not
verified by a laboratory finding, the effect of the use of either intoxicants
or narcotics is well known, and expert verification is not required where a
sufficiency of evidence exists for a layman to make a valid, objective
determination. (Award 7+05, Second Division).
We next turn to the appropriateness of the discharge penalty. Against
Carrier's asserted policy of discharge (and later, reconsideration of an
individual's case) for tine first offense of Rule G (which we do not quarrel
with in proper cases), we must consider both the gravity of the offense in
this case as well as Claimant's previous record. It is true that Claimant
Foam 1
Page
4
Award
No.7937
Docket No. 7721
2-C&NW-CM-' 79
was a short term employe when this incident occurred, however, we cannot
find reference to arty previous discipline or cautionary letters against
Claimant, nor can we find (or is it argued) that Claimant had a drinking
problem. Further, aside from the evidence herein before reviewed, there were:
no other obvious signs of -intoxication which would substantiate a serious
breach by the Claimant.
Based on the foregoing, and considering the purpose of discipline, we
find the discipline assessed was excessive. We conclude that while in
exercising due precaution, management was justified in not permitting the
Claimant to work on the night in question or pending the hearing, the
discharge was excessive and should b e converted to a six
(6)
month suspension
without pay. Claimant is to b e compensated in accordance -Vrith Rule
35
of
the agreement for all time held out of service beyond six
(6)
months after
his discharge, and he should be reinstated to service.
A W A R D
Claim sustained in accordance with the findings.
NATIONAL RA.IURQAD ADJUSMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
Y.
' Rosemarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 24th day of hisy, 1979.
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CARRIER MEMBERS DISSEN TO SECOND DIYISIO~ AWARD
7937
_ DOCKET 7721
Referee Robert Franderx
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Ix holding that being under the influence of alcoholic beverages was not
a "serious breach" because there was no previous discipline nor evidence of
a drinking problem, the majority seriously underestimates the tragic consequences or a, lax enforcement of "Rule G", serious and tragic consequences
which can mean train wrecks, personal injury to employes and, ire general,
a threat to the well being an& safety of railroad employs and the general
public. It ins far this reason that the rail industry has, historically,
taken the enforcement of "Rule G" seriously and assessed severe., but necessary
2enalties9 including
dismissal, for those
employees found guil'~T of Rule
G infractions, regaidleas of their length of service or previous records.
While "iiogre$aive discipline"
Pay
in many instances be appropriate for
leaner offenses, such as absenteeism or tardiness, it is certainly not
appropriate for en employee found guilty of "rule G" who, in essence, is
threatening the safety of himself
and his
fellow employees by working around
trains or moving equipment while not in full and sober control of his
faculties.
Several Carriers sow have "employee assistance programs" to aid employes with
alcoholic tendencies, and many employee have voluntarily presented themselves
to these programs for assistance with their problems without the threat of
disciplinary action. However, these programs are sot within the scope of
:he collective bargaining agreements and the Board has now authority to
ixtermingle the two processes aside from suggesting to the possibly alcoholic
DISSENT TO AWARD 7937
Page 2
dismissed employee that his voluatary submission to the program might be in
his best interests if he seeks, ever, to return to his job with the railroad (See Second Division Awards 7613 and 7636, among others).
In this case, given the forgoing, the Majority
should
have let the dis
cipline stand instead of substituting it's judgment for that of the Carrier.
Carriers have a tremendous responsibility for the saftety of their employes, and the general public, and we feel the majority erred when it imposed its'
judgment of. what, in this case, seemed to be an appropriate measure of discipline to the majority. It is thteraployes and general public that suffer
from accidents and injury caused by the use of alcohol on the job, and the
rail carriers should be granted full latitude in taking appropriate
measures to protect all concerned from such tragic possibilities.
It i,~, for thr.;ne r asgtis that we must dissent.
J. W,I G*htnn
B K. T
e-/
E: Mason
G. H. Vernon
. V . Va rga