Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9281
SECOND DIVISION Docket No.
8905
2 -EJ&E -CM-' 82
The Second Division consisted of the regular members and in
addition Referee George V. Boyle when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Elgin, Joliet and Eastern Railway Company
Dispute: Claim of Employes:
1. That the Elgin, Joliet and Eastern Railway Company unjustly withheld
Temporary Carman Kevin Darby from service for four
(4)
hours on September
14, 1979
and subsequently suspended him from service for thirty
(30)
days(October
15, 1979
through November
13, 1979)
as a result of an
investigation held on October
3, 1979
in violation of the controlling
Agreement, specifically Rules 100 and 101.
2. That the Elgin, Joliet and Eastern Railway Company be ordered to compensate
Temporary Carman Kevin Darby for four
(4)
hours on the date of September
14, 1979
and further compensate him for the thirty
(30)
day suspension.
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 was a Temporary Carman employed for almost a year at the
carrier's facility in Joliet, Illinois.
He was first withheld from service for four
(4)
hours and then, after subsequent
hearing, he was suspended for a period of thirty (30) days on the charge of "The
use of intoxicants while subject to duty
...
and while
on
duty. The possession
of intoxicants
...
while on duty and while on carrier property."
The employes, on behalf of the claimant, assert that the carrier violated
Rule 100 which reads, in part, "a) No employee should be disciplined without a
fair hearing by a designated officer of the carrier. Suspension in proper cases
pending a hearing, which shall be prompt, shall not be deemed a violation of this
rule." (Emphasis added).
They also allege that the carrier failed to prove the charges against the
claimant and that he did not receive a proper hearing since a test for alcohol was
F orm 1 Award No. 9281
Page
2
Docket No.
8905
2-EJ&E -CM-'
82
never performed and a proper search conducted.
Moreover, they claim that his past record was improperly used in arriving at
the penalty.
The Board, however, is convinced otherwise. The carrier's supervisors
exercised due discretion in handling this matter. First, the supervisor who
witnessed the claimant drinking on his lunch hour watched the claimant drink from
a beer can, kept the can in view when it was discarded, retrieved it after the
claimant left, had its remaining contents verified by another supervisor and
immediately brought the claimant to his office for questioning.
Further, the truck in which the claimant consumed the beer was searched by
supervision and the unconsumed remnants of a six-pack were retrieved. In further
evidence of the veracity of the charges, the claimant admitted that the can the
supervision had retrieved and saved for evidence was his. On page
8
of the
transcript the General Foreman questioned the claimant "When I first entered the
office and showed you the beer can I understood you to say yes, it was yours, you
were drinking it ..." The claimant answered, "'Yes it was my can' was all that I
said, and you said the rest..."
The contents of the can from which the claimant had been drinking were
verified by two supervisors and it is not a requirement that they be subject to
chemical analysis for identification.
The search of the vehicle in question was conducted in proper fashion after
the claimant had been suspended. Three empty cans and two unopened cans of beer
were discovered. They were of the same brand that the carrier representative
testified the claimant had been drinking and the two unopened cans were in a wet
paperbag, according to testimony at the hearing. The claimant had driven the
vehicle onto the carrier's property and thus must be said to have been in possession
of intoxicants.
The matter of suspension being restricted "to proper cases" does not limit
the carrier's action in this case. In fact, Rule 100 has been appropriately
applied and is deemed a "proper" one for the application of suspension prior to
the hearing..
With respect to the degree of discipline, it is not for the Board to
substitute its judgement except under very limited and extenuating circumstances.
Further, the employes' objection to the carrier having considered the claimant's
record in determining the penalty is ill-founded. The claimant's conduct must be
considered in the content of his prior behavior. Moreover, frequently an
"unblemished record" is used by employe organizations as a rationale in requesting
leniency. Thus regardless of when this record entered into the carrier's calculation
of the disciplinary penalty, it is justly and properly an element to be considered
in such determination.
Therefore the Employes' assertion on behalf of the claimant are without merit
and the grievance is denied.
Form 1
Page
3
Claim denied.
A W A R D
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
Award No. 9281
Docket No.
8905
2-EJ&E-CM-'82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 4th day of August, 1982.