Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 8758
SECOND DIVISION Docket No. 8457
2-ICG-CM-'81
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Illinois Central Gulf Railroad Company
Dispute: Claim of Employes:
1. That under the current Agreement, Car Cleaner Willie Fallmer was unjustly
treated when he was dismissed from the service of the Illinois Central
Gulf Railroad on October 2, 1978, subsequent to an investigation which
was held on Friday, September 22, 1978.
2. That accordingly, the Illinois Central Gulf Railroad be ordered to
restore Car Cleaner, Willie Falkner to service with all seniority rights
unimpaired, compensate Mr. Falkner for all time lost beginning on September
22, 1978, until such time he is restored to service, and for any and all
other benefits he would be entitled to as a condition of employment,
account of the aforementioned unjust dismissal.
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 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.
The claimant, who was 58 years of age, had been in Carrier's service for 28
years. At the time of the incident giving rise to the dispute herein, he was
employed by the Carrier ,at 18th Street, M. U. Shop, Chicago.
After reporting for duty on September 14, 1978, he gathered together the necessary
materials needed for the performance of his work; placed them on his wagon, and was
pushing his wagon toward the water fountain when he fell, striking his left upper
forearm and the back of his head. Two supervisory personnel saw him fall and both
helped him to his feet. Claimant was, at the time, asked if he wanted to see a doctor
and he replied in the negative. Some ten or fifteen minutes later he changed this
mind; necessary arrangements were made, and he was transported to the doctor by
the Car Foreman.
Form 1
Page 2
Award No. 8758
Docket No. 8457
2-ICG-CM-' 81
The doctor reported that while claimant was being examined, he smelled of alcohol,
and had the appearance of being intoxicated. With claimant's permission, a blood
test was conducted. A report of the blood test showed a blood level of alcohol of
270 MG/DL, with the legal limit being between 0-100 MG/DL or 0.100.
On September 18, 1978, claimant was notified by Carrier's General Foreman:
"Please arrange to attend a Formal Investigation to be held
in my office at 18th St. M. U. Shop, Chicago, Illinois at
10 A.M., September 22, 1978, for the purpose of determining
whether or not, you were intoxicated on duty, Thursday -
September 14, 1978. You may bring a representative and
witnesses in your behalf as provided in your schedule
agreement. At this time your personal file will be
reviewed."
The investigation was held as scheduled, and on October 2, 1978, claimant was
notified of his dismissal from service. A copy of the transcript of the investigation
has been made a part of the record. We have carefully reviewed the transcript of
the investigation and find that none of claimant's substantive procedural rights
was violated. The reading of claimant's past record into the investigation was not
in violation of the agreement.
In the investigation, a letter from the doctor was read covering his observation
of claimant on September 14, and the result of the blood level of alcohol test. Also,
in the investigation claimant stated that he had been drinking at a party between
12:00 midnight and 1:00 A.M., the night before.
It is the considered opinion of the Board that there was substantial evidence
adduced at the investigation in support of the charge against claimant; however,
considering his twenty-eight years of service, permanent dismissal was excessive.
We will award that claimant be restored to service with seniority and other rights
unimpaired, but without any compensation for time lost while out of the service.
A W A R D
Claim sustained to the extent indicated in Findings.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 2nd day of September, 1981.