Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9528
SECOND DIVISION Docket No. 9549
2-CR-MA-183
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
D. S. Swansegar to service and compensate him for all pay lost up to
time of restoration to service at the prevailing machinist rate of pay.
2. That machinist D. S. Swansegar be compensated for all insurance benefits,
vacation benefits, Holiday benefits and any other benefits that may
have accrued and were lost during this period in accordance with Rule
7-A-1 (e) of the prevailing agreement effective May 1, 1979.
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, Mr. D. S. Swansegar, was removed from service as a Machinist
at the Csrrier's Collingwood Diesel Terminal as of 8:00 P.M. August 29, 1980.
He was notified that he was being held out of service by letter dated September 2_
1980. Also by notice dated September 2, 1980, Mr. Swansegar was given notice of
the charges against him and a trial date. The charges were as follows:
"Violation of Conrail Safety Rule 4002 for M of E Employees
on 8/29/80 at approximately 8:00 P.M.
Violation of Rule 'G' of the Rules that Govern the Locomotive
Department Employees issued by J. J. Butler, Chief Mechanical
Officer and reissued 7/7/80; on 8/29/80 at approximately 8:00 P.M."
The trial was held on September 19, 1980. By notice dated October 10, 1980, the
Carrier notified Mr. Swansegar that he was dismissed from service because it had
found him to be in violation of Safety Rule 4002 and Rule G. This decision was
appealed by the Organization and is now properly before this Board.
Form 1 Award No. 9528
Page 2 Docket No.
9549
2-CR-MA-183
The Organization cites numerous awards setting forth the Carrier's burden of
proof in a discharge case. For example, the Organization refers to Second Division
Award No. 4o46 (Anrod)
"This case turns on the question of whether the Claimant was
discharged for just and sufficient cause as contemplated in
Rule 34 of the applicable labor agreement. For the reasons
hereinafter stated, we are of the opinion that the answer is
in the negative.
It is firmly established in the law of labor relations that
the burden of proof squarely rests upon the employer convincingly to prove that an employe committed the offense upon
which his discharge is based. In meeting this burden of
proof, an employer is free to rely on circumstancial evidence.
However, irrespective of whether circumstancial or direct
evidence or both types of evidence, is relied upon, the
employer still has the burden to prove convincingly that the
employe involved is guilty of the wrongdoing with which he is
charged. Mere suspicious circumstances are insufficient to
take place of such proof..."
In the instant case substantial evidence of record, not mere suspicious °
circumstances, supports the Carrier's finding of responsibility for violations
of Conrail Safety Rule 4oo2 and Rule "G". Shop Superintendent Gustavson testified
that he observed a can of beer in Mr. Swansegar's hand. Shop Superintendent
Waller also testified that he observed a can of beer in Mr. Swansegar's hand; and
testified that Mr. Swansegar had a strong odor of alcohol about his person.
Assistant Shop Manager Haas testified that he also observed a can of beer in
Mr. Swansegar's hand; and further testified that he smelled alcohol on Mr.
Swansegar's person. It is true that none of the three Carrier officers observed
Mr. Swansegar actually drinking beer. However, Mr. Swansegar was found in the
P-I-A downstairs locker room bathroom with five other employes near a trash can
with approximately twenty beer cans in it, holding a half empty can of beer;
and two of his supervisors testified concerning the smell of alcohol about his
person. We find that such is substantial evidence of record not only that he
possessed intoxicants while on duty in violation of Rule G, but also that he had
used alcoholic beverage while on duty in violation of Rule 4002 and Rule G.
Under the above circumstances the Carrier did not violate Rule 6-A-1(b) of
the controlling Agreement by removing Mr. Swansegar from service.
The record indicates that Mr. Swansegar had four years of service as of the
date of the incident now before the Board; and that he was a quality employe who
had been offered a foreman's position but turned it down until he had sufficient
knowledge that he could govern men and explain jobs to them when they had
questions.
We believe under the narrow facts of this particular record that the
discipline has served its purpose, and that Mr. Swansegar should be reinstated to
his former position with all seniority rights unimpaired but without back pay.
Form 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By.
Award No. 9528
Docket No.
9549
2-cR-rrA-'
83
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Secrn d Division
Ro rie Brasch - Administrative Assistant
Dated at icago, Illinois, this 15th day of June, 1983.
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