Form 1 NATIONAL RATIROAD
ADJUSTMENT
BOARD Award No.
8821
SECOND DIVISION Docket No.
8704
2-BN-MA-181
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered,
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement and the Burlington Northern schedule of
rules, the Carrier unjustly suspended Machinist T. B. Smith from service
effective September
7,
1978 and unjustly dismissed Machinist Smith :from
service effective October 12,
1978.
2. That accordingly, the Carrier reinstate Machinist Smith to service
with seniority rights unimpaired and all other rights and privileges
restored, and compensate Machinist Smith for all wages lost as a
result of his suspension for dismissal from service from September
'7,
1978 to the present date.
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 employee 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 was advised of a formal hearing concerning a charge that he
violated Rule "G".
Subsequent to the investigation, the Claimant was dismissed from service.
The Employes have questioned the propriety of the suspension of the Employe
pending the investigation, despite the fact that Rule
35(b)
of the agreement
permits suspension in cases involving "serious infraction of rules pending
investigation". The organization insists that the rationale for the cited
language is to prevent likely or threatened reoccurrence of an offense, and that
there is no showing that the criteria is met in this case.
Regardless of the merits of that contention, we do not find that the Employes
raised that question in significant terms while the matter was being handled on
the property and, accordingly, we find it inappropriate to consider it at this
level.
Form 1 Award No. 8821
Page 2 Docket No. 870+
2-BN-MX-181
On September
6, 1978,
two locomotives collided in the Carrier's Diesel Shop,
which resulted in an injury to the Claimant, who was transported to the hospital
for examination. Because the Foreman-Locomotives detected an odor of alcohol on
Claimant's breath on the way to the hospital, instructions were issued to request
a blood test from the Claimant. He voluntarily submitted to such a test.
Despite the testimony that alcohol was smelled on his breath, and the results
of the tests, the Claimant denied that he consumed any alcoholic beverage during
his tour of duty, or immediately before that time.
The blood test demonstrated that the Claimant had .1$ alcohol content in his
blood when it was tested. The laboratory report contains an interpretation which
indicates that .2 indicates intoxication, and that levels decrease by about
.01-.02 per hour.
Thus, in addition to the testimony of the Foreman and another employe
concerning the odor of alcohol, we have before us evidence indicating a substantial
amount of alcohol in the Employe's bloodstream at approximately
7:x+5
P.m.
The Claimant had reported for duty at 3:00 p.m., and the accident occurred
at approximately 5:30 p.m. Thus, the blood alcohol report strongly indicates
that - given the rate of decrease in the system - the Employe was in a state of
intoxication when he reported for duty.
Rule G not only precludes drinking on duty, but also clearly prohibits use
of alcoholic beverages by employee subject to duty. Thus, it is of little moment
whether the Employe drank after he reported for work, or if he reported in an
impaired condition.
We are not unmindful of the Employe's disclaimer, nor have we ignored the
testimony that the Employe performed his duty prior to the incident which resulted
in his being transported to the hospital. Neither have we ignored Second Division
Award 7187.
But, none of those elements convince us that the Carrier acted
improperly. The clear rule (which the Employe understood) prohibits employee
from reporting to work under the influence of alcoholic beverages. The fact
that he might, or might not, perform certain aspects of his duties prior to his
condition being detected is not an automatic defense.
Whatever may be the significance of the discussion of "influence" in Award
7187,
the fact remains that being "under the influence" is clearly defined by
chemical analysis, as it is undisputed that various alcoholic amounts in a persM's
bloodstream has s debilitating effect in direct proportion to the amount of
alcohol contained therein. It cannot be seriously urged that a blood *lcohol
level slightly below "intoxication" is not, in and of itself, an "impairment" of
ability to function and, accordingly, we will deny the claim.
A W A R D
Claim denied.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8821
Docket No.
M+
2-BN-MA-181
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By /
rie Brasch - Administra ve Assistant
Dated at Chicago, Illinois, this
10th day of November,
1981.
Iwo
mo