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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9784
SECOND DIVISION Docket No. 9711.
2-C&NW-SMW-' 84
The Second Division consisted of the regular members and
in addition Referee Thomas F. Caret' when award was rendered.
(AFL-CIO Sheet Metal Workers' International Association
Parties to Dispute:
(The Chicago & North Western Transportation Company
Dispute: Claim o f Dnp1o yes:
1. That the Chicago & North Western Transportation Company violated the
current and controlling Agreement, most flagrantly Rule 35, when
Sheet Metal Worker Charles S. Thomas was unjustly suspended from
service August 28, 1980, prior to investigation, which was held September
18, 1980, resulting in unjust dismissal from the Chicago & North
Western Transportation Company effective September 19, 1980.
2. That accordingly, the Chicago & North Western Transportation Company
be ordered to:
a. Immediately reinstate Mr. Thomas to service seniority rights
unimpaired and compensate him for all time lost beginning from
August 28, 1980, the date he was improperly withdrawn from service.
b. Make Mr. Thomas (Claimant) whole for all losses.
c. Compensate the Claimant for all overtime losses.
d. Compensate or make whole for claimant all holiday and vacation
rights.
e. Pay premiums on health and welfare Travelers policy.
f. Pay premiums on Provident Insurance policy.
g. Pay premiums on Aetna Dental policy.
h. Pay interest on nine percent on all wages, overtime, holiday
and vacation time lost.
i. A11 reference to this unjust investigation be stricken from claimant's
record.
Form 1 Award No. 9784
Page 2 Docket No. 9711 ,Or
2-C&NW-SMW-'84
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.
Claimant is a Pipefitter in the Carrier's employ for nine (9) years at its
Proviso Diesel Shop. Claimant was dismissed from service following an
investigation on September 18, 1980, in which he was charged:
"Your responsibility in connection with violation of Rule "G" of the
General Regulations and Safety Rules while assigned as Pipefitter at
the Proviso Diesel Shop on Thursday, August 28, 1980, and,
Your Responsibility for absenting yourself from duty and leaving
the Chgo. Northwestern Transportation Company property on Thursday,
August 28, 1980, at approximately 2:20 a.m. to 5:15 a.m. without
proper authority while assigned as Pipefitter at the Proviso Diesel
Shop. "
Carrier's Rules 14 and "G" read in pertinent part:
"14. Employees must report for duty at the designated time and place.
They must be alert, attentive and devote themselves exclusively to
the Company's service while on duty. They must not absent themselves
from duty, exchange duties with or substitute others in their place,
without proper authority.
G. The use of alcoholic .beverages or narcotics by employees subject
to duty is prohibited. Being under the influence of alcoholic beverages
or narcotics while on duty or on Company property is prohibited. The
use or possession of alcoholic beverages or narcotics while on duty
or on Company property is prohibited."
Claimant is assigned by bulletin to work 11:00 p.m. to 7:00 a.m. with
Saturday and Sunday as rest days. The incident which serves as the basis for
the charges occurred on Wednesday evening, August 27, 1980. The lunch period
for the Claimant was scheduled from 2:00 a.m.-2:30 a.m. There is no serious
dispute that the Claimant left the property at about 2:00 a.m. and was seen reentering the parking area in his car shortly after 5:00 a.m.
Form 1 Award No. 9784
Page 3 Docket No. 971.1
2-C&NW-SMW-'8~4
The Carrier maintains that employees mere not permitted to leave the property.
The record raises questions as to the degree of
consistency in
the Carrier's
practice of not permitting employees to go off the property for lunch on this
particular shift (TR-10). While some question may exist as to the Claimant's
authorization to leave the property for lunch, there is no dispute "he absented
himself from duty" between the hours of 2:30 a.m. until shortly after 5:00 a.m.
without permission and contrary to Rule 14.
The record is also clear that the Claimant directly informed at least one
supervisor and reaffirmed to two other supervisors that he had advised that
supervisor he "had been to Mame's" and "had two beers" (TR 15-16) during the
period in question.
At the hearing the Claimant contended that he had privately advised the
General Foreman E1lrich "That I had been trying to catch my wife" (TR 15).
However, the General Foreman, when called as
a
rebuttal witness, testified ('.i'R
19):
"Q. Mr.Ellrich, when you first encountered Mr. Thomas on his return
to the Diesel Ramp, did Mr. Thomas indicate to you any reason
other than going to lunch for absenting himself from Company
property?
A. Well, Like 1 said before, Mr. Thomas' statement to me when I
asked him where he was, was he said he had been at Mame's drinking
beer, and quote, he said, 'I know you people are going to fire
me over this so go ahead and do whatever you have to do'. And
_r
asked him again, 'Chuck, where were you?' And he said, 'I was at
Mame's drinking beer.'
Q. Did Mr. Thomas, in your presence alone, just you and him, indicate
to you any other reason for absenting himself from the service of
the property.
A. No.
Q. Other than being at the tavern drinking beer?
A. No.
Q. No other reason?
A. There was, well, first of a11, Mr. Thomas was, Mr. Mondek was with
us, in fact, all the time.
Q. Were the two of you ever by yourself out of hearing of other people
during this episode.
A. No, no. Not that I can recall.
Form 1 Award No. 9784
Page 4 Docket No. 9711
2-C&NW-SMW-' 84
"Q. And Mr. Thomas did not relate to you any problems that he might
have had or was going to encounter during the period that he was
absent from the property.
A. NO . "
The General Foreman also reiterated on
cross-examination, the
Claimant had
not related any domestic problems to him as the reason for his absence.
It is conceivable that the Claimant may have had a serious domestic problem
at the time, and that he did not want that fact to be too widely known. However,
the record does not support his
contention. His
reliance that his statment to
the General Foreman.on that night, "well you know what's happening," should
offset his repeated admissions about drinking beer at Mame's is misplaced. He
may well have intended to have the General Foreman privately recognize there
was a domestic reason for his absence. However, there is
no
evidence or proof
that he clearly communicated this situation. Further,
no
reason is proffered
in the record to challenge the credibility of the General Foreman or his denial
that such an explanation was given to him by the Claimant.
The Carrier's handling of the interview on the property was somewhat overactive,
but not sufficiently so as to represent a violation of Rule 30. The Claimant
was afforded the opportunity to seek counsel and/or union representation, but
was unable to get an answer to his repeated calls (TR 9,11). His claim at the
hearing that the phone "would not work" (TR-16) was fever cited to the supervisor
that
evening, in
spite of the testimony he made "several calls." Even accepting
the Claimant's reluctance to submit to a blood test because "I'd rather have a
man pulling a shotgun at me as a needle," the Claimant failed to make any effort
to demonstrate that the Carrier was in error in its conclusion he had been
drinking. He acknowledged that the Trainmaster asked him to blow in his face
and he did (TR-16). The only response o f the Claimant when the Trainmaster
said "under the influence ...he smells like a brewery" (TR-16) was "if we wasn't
on railroad property, I'd punch him in the mouth" (TR 17).
A complete review of the file and the transcript of the hearing indicates
that substantial evidence exists that the charges as advanced by the Carrier
are supported by the record. The claimant admitted before witnesses to having
been drinking, which was affirmed by the Trainmaster. Such a condition is
contrary to Rule "G". Being under the influence of alcohol is a serious dismissable
offense in this industry and this conclusion is supported by numerous awards.
Further the record is clear that the Claimant did "absent himself from duty
contrary to Rule 14."
Upon the entire record, the Board finds the Carrier's determination to be
neither arbitrary nor excessive considering the Claimant's prior record of
Letters of Reprimand in 1976 and 1979 for absenteeism, tardiness and going home
early.
.100
Form 1 Award No. 9784
Page 5 Docket No. 9711
2-C&NW-SMW-'84
A W A R D
The claim is denied.
NATIONAL RAILROAD ALITUSTMENT BOARD
By Order of Second Division
Attest:
Nancy ~ver - Executive Secretary
Dated at Chicago, Illinois this 2nd day of February, 1984