Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
~g30
SECOND DIVISION Docket No t5.
2-CR-EW-'82
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
International Brotherhood of Electrical Workers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation (ConRail) was arbitrary and unjust
in their action of dismissal from service of Electrician R. R. Noel on
August
7, 1979·
2. That accordingly, the Consolidated Rail Corporation (ConRail) be ordered to
restore Electrician Noel to service with all seniority rights unimpaired
and compensated for all wage lost '&y their unjust action in the dismissal
of Electrician R. R. Noel.
Findings
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employs or employee involved in this dispute
are respectively carrier and employs within the meaning of the Railway Labor Act
as approved June 21,
193+.
This Division of the Adjustment Board has jurisdiction aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Employee was notified that he was held out of service on July 10,
1979
"...pending trial and decision in connection with being found ...under the influence
of alcoholic beverages".
Subsequent to a hearing, the Carrier found that the Claimant was guilty, and
he was dismissed from the employ of the Carrier.
A Foreman testified that an the day in question, the Employee had a "glassy"
look in his eyes, he did not walk with a steady gait, and he had an odor of alcohol
about him. Moreover, he appeared to stumble at one point.
The Shop Superintendent became aware of the allegations against the Employee,
and when he talked to the Claimant, he also detected an odor of alcohol. He also
testified that the Claimant became boisterous and belligerent, and he had slurred
speech and was glassy-eyed.
The Assistant Shop Foreman generally confirms the above-cited testimony.
,d
Form 1 Award No. 8850
Page 2 Docket No. 8830
2_CR_EW_ '82
Other testimony was recived concerning the Employee's impaired state as well
as evidence which was designed to demonstrate that the Employee had certain normal
difficulties with his gait, etc., which could havE suggested that he was not actually
under the influence of alcohol.
The Carrier requested that the Employee submit to a blood alcohol test to
determine his physical condition, and he agreed. At the hospital, the Claimant
repeated his consent to the test, which was administered. When the results were
received, according to Carrier, they were given to the Claimant, but the hospital
refused to make the Carrier Representatives aware of the outcome of the test;
stating that if the Carrier desired same, it would have to subpoena same.
At the hearing, the Claimant denied that he was given a copy of the blood test,
or that he received an opinion as to hid condition.
Our review of the evidence of record indicates that there is ample evidence to
suggest that certainly the Employee had consumed an alcoholic beverage prior-to his
reporting for duty and was in such an impaired state while on duty. We realize
that the Employee has argued to us that there is no evidence to show he was "on
duty"; but that argument was not advanced at the lower level. The question of the
blood test results is, to some extent, disturbing in that certain evidence was
obtained, and apparently the medical authorities felt it inappropriate to advise
the Carrier of the results. We find it quite difficult to accept the conclusions ~"'`
that the Claimant was never made aware of the results, because otherwise, the hospital
would be in a position of taking certain tests and not giving the results to anyone.
We have noted the Employee's lengthy service with the Carrier, and we have also
noted that he was experienced certain disciplinary problems toward the latter part
of his career.
Our difficulty with the particular dispute is that the Carrier asserted that it
has proved th~.:.
`'_<4
Employee was under the influence of alcohol, as contrasted to a
showing that the Employee had consumed alcohol while subject to duty. We recognize
that the evidence against the Claimant is significant, however, we question that it
amounts to a total showing of "under the influence" as we accept that phrase, absent
a more significant showing of a blood test result or other more specific evidence.
Certainly, however, there was no question that the Employee had constuned alcohol
while subject to duty, and we feel that a finding to that effect is includable within
the overall charge. Accordingly, we will sustain the claim to that extent, and
restore the Employee to service, but without back pay.
A W A R D
The termination is set aside. The Employee shall be restored to duty with
_aention of seniority and other rights, but without reimbursement for any compensation
lost during the period of the suspension.
F orm 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
By ~.
94
~-Ro emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 6th day of January, 1982.
Award No.8850
Docket No.
8830
2-CR-EW-'82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
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