Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award NO. 7958
 SECOND DIVISION Docket No. 7806
 2-ICG-CM-'79



Parties to Dispute: ( (Carmen)
 (
 { Illinois Central Gaff Railroad

 Dispute: Claim of F~:~rlo;~es:












Findings:
The Second Division of the Adjustment Board, upon the ninole record P-na all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and e_.~nploye 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.

Claimant -vas charged with "possession of an intoxicant while on duty ... using an intoxicant while on duty ... and leaving the Company property whale on duty without permission ..." at about 7:30 P.M. on April 9, 1977. Claimant's assigned hours were from 3: 45 P.M. to 11: 45 P.M.

 Fo71a;or.:.ng an Investigation, Claimant was dismissed on the basis of the first and third charges listed supra, the charge of "using an intoxicant while on duty" having been dropped,
 Form l Award No. 7958
 Page 2 Docket No. 7806
 2-TC G-CTd- `79

 As gleaned from a reading of the record, Car Foreman Kamedula and General Car Foreman Veldhuizen, during a routine inspection, approached Claimant at which time they detected an odor of alcohol on Claimant's breath. Mr. Veldhuizen testified that he -just saw C1a:Lmant and another employee "working train in C Yard. They z-allied through a couple of cabooses and stropped and there eras one bad order caboose". Mr, Veldhuizen also stated that "there was a slight staggering in his (Claimant's) vmaLk"; and that "in my judgment (Claimant) was in an unsafe working condition".

 A Special Agent was called to the scene and acco;r_pa.nied Claimant to his car. At the Special Agent's request, Clalx;:ant "willin;ly" opened the trurkof his car :in which was found a plastic bucket with ice cubes, a two-thirds filled pint of Can adi^.n whiskey and a half-filled can of RC Cola, Cl_ainant, having been notified that he was being held out of service pending an investigation, was pexryn:Itted to drive his car home.

 At the hearing, Claimant acknowledged having had two shots of mm and coke at a bar at about 3:00 P.Ni, He denied af'~y knowledge of the liquor, :ice bucket and cola found in the txvnk of the car. lie stated that he had gotten the car from his brother at about 2:1E5 -'.M. tl-at clay. He also denied drinking after reporting to work.

 The Special Agent testified that it was about 8:35 P.M. when the car trunk was opened and he found the plastic bucket, uncovered, filled with ice cubes "type kept in C Yard caboose shanty", which were starting to melt. The outside tem-aerature was about 60 degrees, he reported. Claimant, at the hearing, stated the outside temperature eras 55 degrees.

 Petitioner bases its appeal on the grounds that the precise charges were not proven; indeed, that the Carrier in its dismissal letter failed to mention the charge of "using an intoxicant while on duty".

 Petitioner asserts that Carrier has submitted no proof that Claimant was :intoxicated; that the company's -witnesses were not competent to detexTZine whether he was intoxicated or not; and that the company's witnesses disagreed as to his condition. Car Foreman Karnedula, when questioned at the invest!gation, stated. that he was not sure whether Claimant staggered or not. The" Special Agent, who interviewed the Claimant for about 17 minutes, testified that "As subject appeared to be in charge of his faculties, other than the smell of alcohol on his breath, and bloodshot eyes, he was allowed to drive his auto home". The Special Agent also testified that he observed no staggering or speech i:rpairment at the time he questioned Claimant; nor did he consider Claimant ~~ras drunk ("not having fu-1-1 faculties") at the time. Petitioner holds that this conclusion of the Special Agent indicates that "Claimant was not incapacitated either mentally or physically".

 The dismissal letter states that Claimant "left the Company property while on duty on April 9, 1977 at approximately 7:30 P.M. without permission". The record bearing on this charge is less than crystal-clear.
 Form 1 Award No. 7958
 Page 3 Docket No. 7806
 2-ICG-CM-'79

 Claimant was questioned at the hearing as to the removal of his car "from the C Yard Caboose shanty to the North end of C Yard". The North end is the Company's parking lot. His reply was that he drove his car to the North end between 6:50 P.M. and 7:15 P.M. When questioned by the Special Agent on the day of the incident, he stated that he drove his car to the North end at about 6:45 P.M. The hearing officer's questions concerning the shii'tirlg of Claimant's car from one area of the Yard to another point in the Yard suggests that the movement of the car may have involved leaving the company property during the course of the move, but this was never made explicit, the coznpa.ny stating only: "Clain.ant ... openly and freely admitted that he did not have permission from a responsible company official to trove his car".

 The two foremen encountered Claimant at about 6:55 P.M., and he was in their charge until the Special (rent arrived on the scene at about 7: 30 P~ T.1. Claimant left the company property, after being interviewed by the Special Agent, at 8:25 P.T~11. , having been notified by his supervisors that he eras being taken out of service.

 Petitioner also cites the fact that Claimant worked without mishap from 3:T+5 P.M. to 7:30 P.M.. when he -vas released, as indicating that he was not; intoxicated.

 Finally, Petitioner asserts that no evidence has been presented that the liquor in the car trunk belonged to Claimant.

 During the handling of this case on the property, Carrier's Labor Relations Manager maintained that the evidence supports the finding that "the Claimant was under the influence of an intoxicant while on duty on April 9, 177", citing Claimant's testimony to both Foremen and to the Special Agent that he had drunk two shots of rum and coke shortly prior to coming to work. This charge Z-ms not included in the original listing of charges nor in the company's dismissal letter of April 29, S_977.

 Although we recognize that expert testimony is not necessary to prove that an employee is under the influence of intoxicants or is intoxicated, we are confronted here with differences in judgment and assessment of Claimant's condition by the two foremen and by the Special Agent. Accordingly, we can not credit their statements as evidence of probative significance.

 Although Claimant was known to stutter, he did not at the time. No reference was made by any of the Carrier's witnesses to such ind:icia of "being under the influence" as garbled speech or lack of body control. Evidence as to Claimant's manner of walking., i.e. whether he was staggering, was contradictory.

 The testimony adduced at the hearing about the appearance of Claimant's eyes and his conduct may or may not be significant, kept in extreme cares it is not always a simple matter to detex7tine whether an individual is under
 Form 1 Award No. 7958
 page 4 Docket No. 7806
 2-IC G-CM-' 79

 the influence of alcohol. The fact that one can detect the odor of alcohol on a person's breath does not, in and of itself, ftu nish grounds for concluding that the person is under the influence nor does it necessarily denote arty impairment of that person's physical and mental faculties.

 The fact that Claimant had an odor of intoxicants on his breath alone, without any other observable or demonstrable manifestations of inability to perform his duties with the degree of efficiency and safety that, could reasonably be expected by the Carrier, a lthough violative of company rule,,;, does not, in this inst-ance, warrant the discipline of discharge. There is no evidence that Cla-ireant had actually suffered loss of control of his physical and. mental faculties to any appreciable degree. There is no real evidence of his status except for the odor on his breath and his eyes being bloodshot. Neither of these physical attributes were shown to have affected his ability to perform his work on the day in question. In fact, the General Car Foreman testified he saw Claimant and another e:aiployee working a train when tlley approached.

 The company has the right to issue and enforce rules relating to the use of intoxicants, including drinking prior to reporting for work. Such right 3.s unquestioned, especi -ally given the nature of the work in this industry.. But in this case, while the odor of alcohol on Claimant's breath may constitute sufficient cause for the Carrier to find that a rule. has been violated, and some discipline could be properly imposed, we believe the circumstances involving this charge do not justify the penalty of dismissal.

 In our judqnent, the detexmining factor as to whether the discipline imposed was justified relates to the charge of "possession of an intoxicant while on duty".

 With fest~ect to the issue of "possession", Carrier cites Second Division Award 7231+ (Road-ley) which dealt with. the issue of possession of intoxicants or narcotics, and referred to the Webster Dictionary definition of possession:

The Board, Award 7234, referred to prior First Division Award 22 294 which included the following statement:

Given the dictionary definition of possession in that it is "without regard to ownership", Carrier accordingly argues as irrelevant Claimant's statement he did not know that the bucket and whiskey were in the trunk of
 Form l Award No. 7958
 page 5 Docket No. 7806
 2-ICG-CM-'79

 his car and was responsible for the contents of the car; that the articles; were found 2_n his car; and that this alone constitutes possession of an intoxicant which is sufficient evidence to sustain the charge.

 With respect to the charge of "possession", and Carrier's citation of Award 22 29??, on which it relies, that case :involved theft; of Carrier property, which is not at issue here.

 In the instant case, the Special Agent testified that Claimant "vrilh.rgly" opened the trunik of tzis car when so requested by the Special Agent. No one saw Claimant ta-Tie ice ox' put it in the tx~zzni:. The record, although siic~rir!Z some variations in times, would appear to indicate that Claimant drove his car from the caboose shanty where the ice was l:cpv to the con-pany's parking lot before he was approached by the two Foremen. Claimant denied knowled,.n.,e of thcontemts of the trun?i.

 No evidence has been offered to esta:ahsh that Claimant personally placed the bucket and its contents in the tmziLk of his car, nor has a showring, been made that Claimant took ice from the shanty. At best, Carrier's case rests upon opinion and circumstantial evidence. Carrier's chief witnesses differed in their opinions as to Claimant's condition and the extent to which if at all , his drinking before he care to work a,l"fected his ability to do his work prororty and safely. '.\io evi_d.ence -was submitted to rebut Cla:i:r_amt's testimony that he had received his car from his brother about one hour before he reported for duty. We must conclude, therefore, that the burden of proof has not been met, even if we were to apply the term "possession" rigidly and strictly.

 On the basis of the record considered as a whole, we find that Clainant's dismissal was an excessive penalty. True, Claimant reported for work shortly after having taken two drira:s. But he had worked half his shift without any apparent problems. VThen first observed by the tyro Foremen, he zoas engaged in "working, a train", and no adverse criticism was entered into the record as to the manner of his work perfozmance when so observed. He freely admitted having had the two drinks prior to entering on duty and did not demur i;rhen asked by the Special Agent to open the trunk of his car. Finally, there :is no evidence of prior discipline being meted out to the Claimant.

 Under these circumstances, we hereby set aside his dismissal. But Claimant is not without fault regarding the incident under consideration. The Carrier has the right to expect its employees to report for work in a sober manner. Employees., correspondingly, have a responsibility to do so. Claimant's conduct in drinking within an hour or so prior to reporting for duty, in an industry in which : afety is paramount, constitutes an action akin to misconduct, which calls for discipline. But as we have indicated, we do not believe, under the :Facts shown in the record, that the gravity of the offense warranted the ultimate penalty of dismissal. We must be guided by the quality of reasonableness in any consideration of modifying
 the penalty iatroosed by Carrier.In other words, was dismissal appropriate to
 Form 1 Page 6

 Award ITO. 7958
 Docket No. 7806
 2-IC G-CP.I- ` 79

 the offense? Here, reasonable and honest men may differ as to what constitutes an appropriate penalty. In the instant situation we find the penalty imposed to breach the boundaries of reasonableness.

 In short, ire find that disciplinary action was indicated in the case before us, but one short or dismissal. Accordingly, we conclude that a 60 day suspension z~;ou.1.d be in line with the nature of the infraction, and we so order. Such lesser penalty, 1n our judgement, is called for in terms of reform and deterrence and as an exaz-_r le of constructive use of znanageoment discipline.

 Claimant is to be restored to service with seniority rights uniaiTmaired, and eoznpensated. for all -tine lost sWseciuent to the 60-d,,y suspension, less amounts received in other ez~plos,nrient, FWrUer, pa5,nerit for time lost, if any, shall not be made unless Cla-yzns,nt accepts the offered reinstatement to work with Carrier.

 Claimant :i_s hereby put on notice tha=t any similar occurrence i·rM constitute just cause for ir:mediate dismissal.

 A Zd A R D

 Claim sustained to the extent indicated in Findings.

NA.TIOiRL RAa.l'u30AD A.DJUSTNFNT BOARD

By Order of Second. Division


Attest: Executive Secretary
 National Railroad Adjustment Board

Dated Iat Chicago, Illinois., this 13th day of June, 1979.
 r

DISSENT

TO

AWARD 7958, DoCim IQo. 7806

(Referee Weiss)



DISSENT. T0: AWARD 7958

 - 2 - DO= =T

 0~
disregard to the fact that the reasons for discharge had nothing to do with intoxication while on duty or at the time of reporting for duty.

 1. The Majority clearly exceeded its authority when it failed to limit its review to a question of substantial evidence and proceeded instead to weigh the evidence, assess witness credibility and resolve conflicts in testimony. The proper function of the Board in discipline cases
has been correctly stated in hundreds of awards and has been repeated by this referee in at least two awards.

"The scope of our Board's review in a discipline case is well defined. As an appellate Board, we may not substitute our judgment for that of the Carrier or decide the case as we might have done were we to consider it de novo. We can only decide, from the record, whether there is substantial evidence to support the charge. If the record contains such substantial evidence, then the assessment of discipline rests in the Carrier's discretion and we are not authorized to disturb the penalty imposed unless it can be clearly shown that the Carrier's actions were unjust, unreasonable or arbitrary. These sound principles have been upheld by all Divisions of this Hoard, in awards too numerous to cite." and in Second Division Award 7812:





The Majority clearly assesses credibility in the claimant's favor. When discussing the excessiveness of the discipline the Majority openly attached special significance to the claimant's candidness. It was stated

 in the Award:
                      - 3 - DocK_T__7W7


"He freely admitted having had the two drinks prior to entering on duty and did not demur when asked by the Special Aged to open the trunk of his car. Finally, there is no evidence of prior discipline being meted out to the Claimant." It is more reasonable to conclude that this "willingness" was not candidness at all but a self-serving ploy.
 Earlier on Page 3 the Majority simultaneously resolves a conflict in testimony and makes a credibility ,judgment:

    "Although we recognize that expert testimony is not necessary to prove that an employee is under the influence of intoxicants or is intoxicated, we are confronted here with differences in judgment and assessment of Claimant's condition by the two foremen sad by the Special Agent. Accordingly, we can not credit their statement as evidence of probative significance."

It is clear from the balance of the award that the Majority did not care to consider the question of substantial evidence, but simply weighed the evidence in. an erroneous and biased manner. The fact was there was substantial evidence to support the Carrier's conclusion, particularly that the claimant was in possession of an intoxicant while on duty. It is unrefuted in the record and perfectly clear that at 8:35 P.M., over five and one-half hours after reporting for duty, an uncovered bucket of ice, 2/3 of a pint of Seagrams V.O. Canadian Whiskey and 1/2 of a can of R, C. Cola was found in the trunk of claimant's car. It was further established that the ice cubes were similar in shape to those made in the ice machine in the caboose shanty near where the claimant had parked his car. Further, it was established it was 60 degrees at the time. The claimant's defense was that .he had no knowledge of the trunk's contents., having picked up the car from his brother at 2:x+5 7?.M.
                                DISSENT T0: AWARD 7958

                    _ 4 _ _ DOCKET 7~"~p ' .,~I


the same day. The Hearing Officer did not find this credible in the face of the incorrtravertable physical evidence, believing instead the scientific fact if the ice were in the trunk when he picked it up almost six hours prior, on a 60 degree day it would have melted completely or at least to a much greater degree than observed. The Special Agent testified that the ice had only started to melt. The Hearing Officer weighed the evidence and assessed positive credibility to the Agent's testimony. The Agent testified:

        "Q. Mr. Moylsn you observed the ice bucket and cubes in the trunk of Mr. Jones' car. What was the condition of the ice cubes."


        "A. The ice cubes were in a red pale [sick approximately 8"wide and 8" deep. They were starting to melt. I would say it would only take a matter of a few hours to melt at about 60 degrees outside. It would be much warmer in the trunk. The ice cubes were in a bucket with no top on its no protective covering such as styrofoam that would keep it from melting.


    "Q. What time of day was it when you observed this?

    "A. It was at' 2035 hours 4/9/'t7 that would be 8:35 P.M."

This testimony is substantial evidence in any sense of the phrase. Under the Rules of this Board. the Majority exceeded its authority when it failed to accept it and assessed credibility to the claimant's statement that he had no knowledge of its existence as supported by his candidness. Even if we accept the Majority's proposition that the evidence was circum stantial., it must be recognized that nonetheless it is substantial and probative. As stated in Third Division Award 21419:
                                DISSENT T0: AWARD 7958

                    _ 5 _ DOCKET 7bOg'


    "We believe the better view is expressed in Award 12491 (Ives) where this Division said:


        "'The mere fact that the evidence is circumstantial makes it no less convincing and the Board cannot say as a matter of law that the Carrier was not justified in reaching its conclusion following the trial.,


'4he main difference between circumstantial evidence and direct evidence is that the former requires inferences to be drawn from the facts disclosed. The probative value of such proof depends upon the compelling nature of the inference required. In his journal of November 11, 1850, Henry Thoreau talked of watering milk and said: 'Some circumstantial evidence is very strong, as when you find a trout in the milk."' In addition the Majority ignores valid statements in Second Division Award 7234 and First Division Award 2229+ that hold ownership is irrelevant to possession, that control is the determining factor. Award 7234 held that:

    "The Board notes that 'having possession' includes having

under one's control. This means in one's home, in one's
 automobile, or any other place where the claimant would
 have control over the ax-tides in question." (Emphasis
 added).
 Under this award, and others like it, if properly applied to this cases it
 should have been found that the claimant was in possession of an intoxicant,,
 even assuming the alcohol was owned by his brother, insomuch as it was in
 the claimant's car and the car was in his control. But mystically the
 Majority states:

 "We must conclude, therefore, that the burden of proof has not been met, even if we were to apply the term 'possession' rigidly and strictly." Admittedly, there may be cases under a definition of possession such as found in Award 7234 where possession would be merely technical..
 DISSENT T0: AWARD 7958
        - DOCKET 7~0~


However, as pointed out to the Majority in oral argument, this is not a case of an employee who bought a bottle of cooking sherry for his wife's use at home the next day while on his way to work and innocently left it in his car. It is clear that not only was the claimant (1) in control of the auto, (2) aware of the presence of the liquor in the trunk, but that (3) he had gone to great efforts to make the whiskey readily available and suitable for use. The claimant's trunk was a veritable portable bar complete with fresh ice, good whiskey and mixer.

 The facts in this case clearly established actual possession and at very least constructive possession. Constructive possession may exist without personal dominion over alcohol, drugs, weapons or other contraband but where there is the intent and ability to retain control or dominion. See the Supreme Court's recent decision in County Court of Ulster New York v, Samuel Allen, decided June 4, 1979, where constructive

 possession was found to be evidence beyond a reasonable doubt of possession of firearms. This Board. has also found constructive possession sufficient evidence in Rule G cases. It was stated in First Division Award 22 585:

    "The Board must conclude that the presence or existence of ice cold beer in an engine cab that had been on duty for three homes, leads inexorably to the conclusion that the beer was in the constructive possession of all members of the crew who were in the cab of the engine for an appreciable length of time, absent some affirmative and positive evidence that these crew members, singly or collectively could not or were not aware of the presence or existence of said beer. In view of the fact that a crew member was seen throwing a can of beer out of the window, the Division finds no positive evidence to exculpate the crew members, including the Claimant, from being actually, if not constructively, in possession of the

DISSENT To: AWARD 7958
 DOC= T=
    "bag of beer found in the engine cab. The handling by the crew of only one car in approximately three hours; the throwing of a can of beer from the cab of the engine after the General Yardmaster arrived on the scene, all militate against concluding that the Claimant was unaware of the presence of the contraband, liquor, unless one is prepared to find that the Claimant kept his eyes tightly shut during the three hours he was on duty and under pay." (Emphasis added).

When confronted with similar factual situation in recent Award 791.2 the Board came to a correct conclusion. It was stated:

    "The testimony at the investigation revealed that cold beer

    was found in Claimant s car, parked on Carrier's remises

    some 2 hours after the start of his shims.- his finding

    was correlated on ara-tier tenuous asis -Zth the discovery

    of the same type of beer in a paper bag in another employe's

    possession after he cams from the vicinity of the parked car

    belonging to Claimant. These facts were evaluated in the

    context of Carrier's discovery of evidence indicating significant

    current consumption of beer and other alcoholic beverages on

    its premises during working hours,


    ."Claimant Is explanation for the beer found in his car took the

    form of three conflicting stories. His Mexican origin and _

    language difficulties do not explain the obvious and major

    discrepancies. As we have held consistently over a long period

    of time credibility findings are within the rero atives of

    the Carrier he officer and not this Board's. Based on

    the credibility findings, at minimum, Claimant was in possession

    of-alcoholic beverages on~Carrier r= rt on the night in

    uestion. Thus., the evidence supports Carrier's conclusion as to C imaat's guilt. Further, we find no basis for questioning Carrier's decision as to the penalty imposed."(Eaphasis added).


From the outsets the Majority acknowledged that the Carrier

 dropped the charge relating to the use of an intoxication while on duty upon the assessment of discipline. At the point it was dropped the :issue whether claimant was intoxicated was no longer relevant as a charge, .and it did not need to be treated: However,--for ' same- unapparerrt - reason- the,-,Majority dedicated eleven full paragraphs to the issue of intoxication. The drift of this discussion was to the effect that the evidence of
              DISSEpT T0: AWARD 7958

- 8 - Don . 7 0

 intoxication while on duty was not strong. To include extensive discussion on an irrelevant issue is perplexing. We can only speculate as to the reason. Perhaps the Majority was setting up straw men, shooting them down, to help disguise the felling of the Carrier's case on other counts which could not stand alone. 3. Not only has the Majority assumed the function of the trier of facts, but it is clear it has also taken upon itself the function of preferring charges too. In the penultimate paragraph the Majority makes the following statements:

 "Burt Claimant is not without fault regarding the incident
 under consideration. The Carrier has the right to expect
 its employees to report for work in a sober manner. Employees,
 correspondingly, have a responsibility to do so. Claimant's
 conduct in drinking within an hour or so rior to rung
 for duty, in an industry in which safety is ammo con
 stitutes an action akin to misconduct which calls for dis-

    cipline.' -

            (Emphasis added).

What is incredible is that the Majority finds the claimant guilty of reporting to duty in an un-sober condition although he was never charged or disciplined for reporting to duty in as intoxicated manner. The Majority prepared its own charges, in effect conducted its own hearing on the evidence and assessed its own brand of discipline, a practice at which the Brotherhood should also shudder. This Majority simply decided another case other than the one presented in Docket 7846.
 To compound this error the Majority implies in the above quoted paragraph and on Page 4 of this Award that there are varying degrees of intoxication deserving of varying degrees of discipline. This is a disturbing concept. It had already concluded that clam was not sober, or
                                DISSENT T0: AWARD 7958

                      _9 _ Dock 70

in other words, he was intoxicated, and it has long been held that
 intoxication of any degree is grounds for dismissal. For example
 Third Division Award 15023 said in dealing with a similar contention:
 "The degree of impairment is not essential and the Board will not condone the performance of work by those under even the slightest alcoholic impairment." See also Third Division Awards 20828 and 20100, This portion of Award. 7958 is reminiscent of the famus half drunk-half pay case (First Division Award 3512) a teen if we accept the validity of a finding of evidence that was not part of the charges can we accept the Majority's reduction of discipline? It had.already been found by the Majority that the claimant 'was intox1cated. Sixty days is not the appropriate quantum of discipline for an intoxicated employee working in and around a train yard where his life and the lives of others is immediately threatened by such behavior.
 The Carrier members voice their vigorous dissect to this Award which is inconsistent with the facts in the case and the law of the Board and to the actions of a Majority which has totally exceeded its authority in this case. The Award is without foundation in reason and fact.

 Go H. Vernon

d - (V

    GO


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          .--_ _ .


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B. K. Tucker

6;~ If

    . Varga