Form 1 NATIONAL RAILROAD ADJUSLVkvNT BOARD Award No. 9597
SECOND DrTISION Docket No.
9403
2-NRPC-FO-'
83
The Second Division consisted of the regular members and
in addition Referee Steven Briggs when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Emaloyes:
y
That, in violation of the current agreement, Firemen & Oiler
Thomas Genovesi was unjustly suspended from service of the
Carrier for thirty days following investigation held on
June 22,
1979.
2. That, accordingly, the Carrier be ordered to compensate the
aforementioned Thomas Genovesi for thirty days' lost wages.
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 entered the Carrier's work force on January 20,
1978.
On
June
15, 1979,
at approximately 12:15 p.m., he was sitting on an overhead
bridge guard rail with a brown bottle in his hand. General Supervisor of
Locomotive Operation Wayne Spruill drove by, within a distance of about
15 feet from the Claimant, and concluded that he was holding a bottle of
beer. Spruill did not confront the Claimant at the bridge, He reasoned
that if the Claimant were not on Carrier time, whatever he did was his
own business. Spruill went back to his office and checked the daily force
sheet to see if, in fact, the Claimant was assigned to work that day. He
was so assigned.
Bill Lydon, another of the Carrier's management employees, was in the
car with Spruill. He attests that he saw the Claimant sitting on the guard
rail drinking a bottle of beer. `There were two other men in the car as well.
John Osterholt did not see the bottle. Al Price saw a dark, bottle in the
Claimant's hand, but could not identify its contents.
Form 1 Award No. 9597
Page 2 Docket No.
91+03
2-N-RPC-FO-'
83
Later in the afternoon of the same day the Claimant was withheld from
service. On June 18 he was notified to appear for an ivestigation into
the following charge:
Violation of Rule "C" of the National Railroad Passenger
Corporation Rules of Conduct, in that on June
15, 1979,
at approximately 12:15 P.m., you were observed consuming
alcoholic beverages while subject to duty.
The investigation was conducted on June 22. By letter dated July
3,
1979,
Investigating Officer P. D. Driscoll informed the Claimant that he
was suspended from service for thirty
(30)
days.
The Organization believes that Spruill should have confronted the
Claimant the very moment he saw him. Had he done so, the Organization
argues, he would have discovered that the Claimant was holding a bottle
of Coke. The Organization asserts that the Carrier has insufficient
proof of the charges against the Claimant.
The Organization did not raise any procedural arguments on the
property, so none will be considered here.
The Carrier believes there is sufficient evidence to support the
charges against the Claimant. Two eyewitnesses testified that he was
holding a bottle of beer. One of them saw him drink from it. Thus,
the Carrier argues, the suspension should be upheld.
After considering the arguments of both parties in detail, the
Board has concluded that the record supports the Carrier's disciplinary
action. First, the testimony of Messrs. Spruill and Lydon is persuasive.
Both men had a clear recollection that the Claimant had a beer bottle
in his hand. Moreover, Lydon testified that he saw the Claimant drink
from it.
The Board was also influenced by the Claimant's testimony. He maintained throughout the investigatory hearing that he was drinking a Coke
on the day in question. Then, in its submission to this Board, the Organization added. that "Does Cola" comes in a brown bot"le which looks very
much like a beer bottle. If, in fact, the Claimant was drinking a Doc's
Cola rather than a beer, the Board wonders why he did not say so on the
property. The fact that he did not does little to convince us that he
was drinking a Doc's Cola.
The Cerrier's case obviously would have been much stronger had Spruill
confronted the Claimant on the bridge and obtained the bottle as evidence.
Even still, however, the preponderance of evidence in the record as it
stands is sufficient to support the Carrier's charges.
Form 1 Award No. 9597
Page
3
Docket No. 9'+03
2-NRPC-FO-' 83
A W A R D
Claim denied.
NAT.ONAL RAILROAD ADJUSMENT BOARD
By Order of Second Division
~e~eQ/
ATTEST: _ _
11a /y J . Dever - Executive Secretary
Dated at Chicago,, I11.inois, this
31st day of August, 1983.