C:\AWARDS\OUT\2-08188.htm

Parties to Disnutn: Dispute: Claim of NATIO:ZkL RAILROAD ADJIJST,.LNT BOARD SECOND DIVISION The Second Division consisted or the regular. members and 4n addition Referee Robert E . Fitzgerald, Jr. :hen award eras rendered. System Federation No. 162, Railway Employes' Department, A. F. of L. (Cain) Southern Pacific Transportation Cormany (Texas and Louisiana Lines) - C. I. 0. That the Southern Pacific Transpo-^ta.tion Cor:kpany (Texas and Louisiana Lines) violated tire controlli,;~g afire-: mcnt, part:~culaxly mules 3t,. and 28, whey they un juatly dismiss: Ld Car~~r.zm f; . Bell, Jr. from their service effective Getobe_~ ., 197'7, 2. '.ndzn -s;,

Award t.to. 81.88

Docket i:a. 8C)14

That a ccordingly, the Cormany ( Texas ._nd Lo:.. reinstate Carman :ell -. fo21o;;~s a) Seniority rights uninrpaired; b) Compersate him for all time lost since October 13, 1877; c) Make him whole for all vacation rights;

d) Make him whole for health and welfare and

insurance benefits;

e) Pension benefits including !?ailroad

Retizerr-ent and

Unemployment Insurance;

f) Make him tkhole

for any other

benefits he would have earned dur-in'-'r the time he was held out of service.

·n Pacific Transpor ration :._,'nes) be ordered to
·rice and cormaansate him as The Second Division of the Adjustn·~nt Board, upon the :mole record anti all the evidence, finds that: Form 1 Award No. 8188
Page 2 Docket No. 801 A;

2-SP (T&-L)-C'A-, 73

The carrier or carriers and the emloye or employes involved in this dispute are respectively carrier and a mploye within the m:~aning of the Raii,Jay 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 employed by the carrier for aparoximately four months, when he was found unconscious at his Work location on Sentember 30, 19'77. Various employees of the co«-Pany, including manaje,ent renresertatives, assisted the claii_-x~.nt on gnat day. T}-:e local parai:~dic crew from the fire department :~aa also used to assist claimant. Numerous witness testified that claimant admitted to havi n;? taken a narcotic medication that day, prior to his iosintconsciozness. Further, a witness quoted the parara-ndic team a.-^. havir:analyzed his condition as being one of an overdose of a narcotic substance. Claimant testified that he had no recollection of many events of that day, including conversations lvith n;~:~.e~ous cozaany e:Aployee;> and manaceT~nt. representatives. His recollection resumed from the point where he was bei::g taken home by a fellow employee. It is the position of the claimant that the carrier has introduced insufficient evidence to justify his termination. Fzrthor, the clair33zt hCu5 raised the question of 'tiffs receivin- aue process at his hearin; because -Lhe same carrier representative who issued the notice of heard-Lg, served as hearing officer, advised him of the carrier decision to terminate him, and denied the initial appeal. The carrier denies that any due process violation occurred because the representative who fulfilled t2ae various functions was not a witness arain>t the claimant. rlzr1her, tae carrier conter_ds there is sufficient evidence to justify t`ie discharge of the employee for a violation of Rule G of its rules and regulations .

The language of Rule G is as follows:

"G. The use of alholic beverages, intoxicants or

narcotics

by employes subject to duty, or their possession, use or being under the influence thereof while on duty or on Company property, is prohibited.

Form 1 Award No. 8188
Page 3 Docket No. 301;

2-SF(T11_L)-C.'::-'';9

"Employes shall not report for

duty under the influence of, or use while on duty or on Company property, any drug, medication

' or or. Colx?ar~y property, any drug, edication or o -her cuost'ance, including those prescribed by a doctor, that trill in any way adversely affect their alertness, coordination, reaction, response or safety."

The procedural question of a denial of due process based on multiplicity of roles by ;ranajenient representative, has been cars-_dsred in :,any previous cases. It has been repeatedly held the.- the practice of co,::oinin; functions at the init i al hearing is one that should not be encouraged. However, it has been repeatedly held that the combination of duties, particularly when they are ministerial in nature, does not amount to a violation of the due process rights of the employee.

In the intact case, it is clear from the record, -that the co-rioin:tion of duties did riot a:-~.ount to a denial of due process of the claimant. fhe record reflects a full and co:=.:lete hearing into the conduct of the claimant, and a revie~Y of the disciplinary decision by hiLZher representatives of the carrier's management personnel.

On th:: r:porits of

tho

finding,

the

record reflects more than sufficient

evidence to sustain a fining of a violation of Rule G. 13)oltlh the testimony
Of nLUTCrOUS V';.tI1eSS°S. %21,d the ad::afisions of the claimant ~:1Q';1 that. h'
unconscious due to excessive i'ii?nication. Further, th02"e 1, no eviden(e in
the record to reflect that tt~,-e unc:;nscious co ndltion rosul tod from of :.er
than an overdoes of the narcotic medication. Finally, the severity of the
discipline issued is proper under the cireunstances of the case. The
seriousness of the conduct of the clairrant, plus the s1iort term of e::~loy
ment prior to -that event, jus tiff the termination of the claimant by the
carrier.

Claim

denied.

NATIONAL RAILROAD ADT'ST1,C,NT B 01"M

By Order of Second Division Attest: Executive Secretazy National Railroad Adjustment Board By -A . `,- -f"-- _ ~' _/i,..-.,.~.s---'.' 'Rose:jarie vravsch - Admanis-Lrative l°-.ssisrant Dated at Chicago, Illino--.s, this 28th day of r_,;ovember, 1979.