Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9170
SECOND DIVISION Docket No. 9268
2-CR-SM-182
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
( Consolidated Rail Corporation

Dispute: Claim of Employes:





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 Divisionof the Adjustment Board has jurisdiction over the dispute involved herein.



Claimant was dismissed from the service of the carrier following a formal investigation on the charges of violation of Rule 4002 of the Maintenance of Equipment Safety Rules and conduct unbecoming an employe, to-wit: drinking on the carrier's property during working hours.

This is an extremely difficult case that was not only forcefully and well argued by the parties, but also one arising out of an undercover investigation by railroad security personnel from which numerous other cases have been argued or are pending before this Board. We will strictly confine and limit our consideration to the facts presented in this appeal alone.

The Organization contends that the evidence as presented at the hearing was not substantial or of such a credible nature as to warrant a finding of guilt and the subsequent imposition of the dismissal against the Claimant. The principle testimony in question was that presented by Conrail Undercover Security Officer Bedra.

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Award No. 9170
Docket No. 9268
2-CR-SM-182

The central issue in this case is that of the credibility of witnesses. This Board is not a truer-of-fact; it does not have original jurisdiction. Absent a patently unreasonable conclusion, abuse of discretion, or arbitrary or capricious behavior on the part of the hearing officer, this Board will not overturn the reasonable conclusions as to the probative value and weight of the evidence as determined by the hearing officer. We maintain this position for long-settled and valid reasons -- only the truer-of-fact receives the evidence, hears the testimony, and observes the demeanor of the witnesses. The reasonable conclusions drawn from all the testimony will not be upset by this Board substituting its judgment for that of the opinion, differing viewpoints as to evidence, and diametrically opposed testimony. However, we find no unreasonable conclusions as adduced by the hearing officer in an objective review of the record in this case. (See Second Division Awards 1809, 3676, 6084, 6372).

This Board is extremely careful to fully examine allegations of abuse of discretion and arbitrary or capricious behavior on the part of the hearing officer. Here, after a painstaking review(), we find none so as to overturn the findings and penalty. Although employes have long viewed undercover activities on the part of the employer (in the railroad industry as well as all others also) with antipathy, we cannot say that this was an unpermitted or illegal activity.

The safety of all employes is jeopardized by the consumption of drugs or alcoholic beverages on the carrier's property during working hours. To permit this activity, or to treat it lightly, would not only be a disservice to the carrier, but also more importantly, to the hundreds of other employes in the employ of the carrier.

A W A R D

Claim denied.

Attest: Acting Executive Secretary
National Railroad Adjustment Board

By


Dated at( Chicago, Illinois, this 30th day of June, 1982.

NATIONAL RAIIROAD ADJUSTMENT BOARD

By Order of Second Division


We further find that a typographical error exists in Awards of previous cases as supplied to the Board by the Carrier in this case.