Form 1 NATIONAL RAILROAD ADJITSTilENT BOARD Award No. 857!1~
SECOND DIVISION Docket No. 8618
2-BNI-F0-'81
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Brotherhood of Firemen & Oilers
(
Parties to Dispute:

(

( Burlington Northern Inc.

Dispute: Claim of Employes:

1. That in violation of the current Agreement, Laborer James K. Roen,

Minneapolis, Ninnesota, was unfairly dismissed from service of the

Burlington Northern, Inc., effective February 1, 1979.

2. That, accordingly, the Carrier be ordered to male fir. James K. Roen

whole by restoring hirrn to service with seniority rights-, vacation rig~:ts,

and all other benefits that are a condition of emplovi~ent, Lni_r-.paired,

with compensation for all lost time plus 6,) annual interest; with

reimbursement or all losses sustained account loss of coverage under

Health and ,welfare and Life Insurance Agreements during the time held

out of service; and the mark removed from his record.

Findings:

The Second Division of the Adjustrznt Board, upon the whole record and all the evidence, finds that:

The carrier or 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, 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.

Following an investigation held on January 11, 1979, the claimant was

disi:`;::~-:.::= - '. .,: ,J sbsent without proper leave on December 31, 11078
and for violation of Rule .G (consumption of alocholic beverages while subject to
duty) on the snr"e date. The he;rin S~as condcated in a fair and regular fashicn.

The underlying facts are hotly contested. At 8:30 a.m. on December 31, 1078, which was one .and one half ho,,-=-s after his shift beeaii, the claimant called his general foreman and stated he would not report for work as he had been out dancing all night. Vie claimant told the fore·ran that he said he was sleepy and unable to report to work. tie also said ire was "half crocked" or "slightly s:aas::ed". The general forerLan, according to the claixant, never indicated tiia t the cla imant would be den4..-d ._ ..._..Al,~:;. ,7',,r L2%.. :-~-__Ct~p T.._. ~.C:=~...:~ rvrf'.T".::~:1 CCi;tr:.id...C~C:~ C1.'.,_.. rendition of ( the telephone conversation. ' According to the foreman, the claimiant admitted that his drinking and partying cause his unfit condition and that his absence was uT1e:.:c,:seda Vie ~'_-ant admitted sari rule violations during the
Form 1 Award No. 8571
Page 2 Docket No. 8618
2-BNI-FO-'81

hearing. However, these admissions contradict his factual testimony. For example, the claimant admitted he violated Rule G but he twice unequivocally testified that he did not consume any alcoholic beverages the evening before his December 31, 1978 shift. (This testimony was affirmed by a relative of the claimant who also attended the party.) Due to the claimant's absence cn December 31, 1978, the carrier had to pay cverti:e for a ~~`_:t:.t~.:t:~_ empl,,)ye. :e ~~- 11 es~:::rine each charge separately as the carrier must independently proffer substantial evidence to support each charge.

From the record, there is clearly substantial evidence that the claimant was absent without proper authority on December 31, 1978. Regardless of whether or not he was drinking the claimant freely conceded that he was tired because he had been to a dance party. The organization argued that the claimant is protected by Rule 15(f) which excuses er_plcyes who are unavoidably detained and promptly report their absence to the carrier. We have ruled in past awards that neither personal convenience nor personal comfort constitute an unavoidable absence. Second Division Award No. 7838 (-tarx); Second Division Award 81*J (Kasher). Claimant's social life is szjbservient to his obligation to regularly report to his assigned duties. The extreme fatigue which prevented he claimant from reporting to work was the sole result of his c;rn behavior. Therefore, we sustain the first charge.

Claimant also allegedly violated Rule G. According to the carrier, tie clai:ant not only admitted to violating Rule G but also told his foreman that hezvy drir,':in caused his f<:ti-,+ed conditzc)n en Dect-:ber J3., 1'"7~. 7":e or;;- nization rebuts by contending there is insufficient independent evidence to prove a Rule G infraction. Rule G states:

"The use of alcoholic beverages or narcotics by employes subject to duty is prohibited."

We have interpreted Rule G to prohibit not only consumption of alr.ohclic beverages during an employe's shift but also employes are forbidden to drink alcohol in the period before reporting to duty when such consumption is likely to interfere with the employe's performance. Second Division Award No. 8135 (,McMurray). However, merely drinking while off duty is not a violation of Rule G. Second Division Award 74-;;',4 (Marx). In this case, the hearing officer,

~,,,~o a tt,,,- - _? -~__- _ - - _ - _-' . __..~: '~
. t e beaerz~l S
f;.r~: version of the telephone conversation. Thus, we make our ruling on the basis that the claimant did consume alcohol the evening preceding his morning shift.

A 14 A R D

Claim denied.

NATIONAL RAILROAD ADJUMFENT BOARD
By Order of Second Division
Attest: E::ecutive Secretary
;;a-i.onal I;^ilro:~d .-Ad.'+i~:t7.~.rt Bc.:,rd

~_,.·''~C~semarie

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. li: .x::__ , ~.. , . , " 7 n;ary, 1981.
Dated at Chic;9a,