Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9.577
SECOND DIVISION Docket No. 9776
2-CR-FO-'83
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute: (
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That, in violation of the current agreement, Laborer R. L. Campbell
was unjustly dismissed from service of the carrier following trial
held on May 1, 1981.
2. That, accordingly, the Carrier be ordered to make the aforementioned
R. L. Campbell whole by restoring him to Carrier's service, with
seniority rights unimpaired, made whole for all vacation rights, holidays,
sick leave benefits, and all other benefits that are a condition of
employment unimpaired, and compensated for all lost time plus ten (10%)
percent interest annually on all lost wages, also reimbursement for all
losses sustained account of coverage under health and welfare and life
insurance agreements during the time he has been held out of service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
r
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.
On April 23, 1981, the Claimant was given notice to attend an investigation
to be held on May 1, 1981, for the purpose of ascertaining the facts relative to
an incident which allegedly occurred on April 21, 1981. It was further contended
that the Claimant participated in the incident to be investigated. As a result
of the investigation, the Claimant was found guilty of violation of the Carrier's
rules and he was dismissed from the service.
According to the testimony of an official employed by the Carrier, the
Claimant, while on duty on April 21, 1981, was observed to be sitting at a table
in a restaurant, drinking beer. Another Carrier official also testified that he
smelled the odor of beer and observed some cans of beer and glasses on the table
at which the Claimant and one other individual were seated.
The Claimant, to dispute the Carrier's contentions, relies upon a witness
employed by the restaurant who testified that the Claimant ordered only a sandwich
and a ginger ale. The witness, when explaining the presence of beer cans on the
table, explained that she was very busy on the date in question and did not have
Form 1
Page 2
a chance to clear the table before serving the Claimant.
The Board finds substantial evidence to support the Carrier's findings.
However, in view of all of the circumstances and facts of record, we consider
permanent dismissal to be an excessive discipline. Having thus found, the Claimant
shall be restored to service with seniority rights unimpaired, but without any
compensation for time lost while out of service.
Award No. 9577
Docket No. 9776
2-CR-FO-'83
A W A R D
Claim sustained as per findings.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By ~~1/~.~
s arie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 20th day of July, 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division