Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award
No. 10156
SECOND DIVISION
Locket
No.
10257
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( International Brotherhood of Firemen and Oilers
( Belt Railway Company of Chicago
Dispute: Claim of Employes:
1. That Laborer Patrick Gilmartin was unjustly dismissed from service on
June 21, 1982.
2. That accordingly, Laborer Patrick Gilmartin be returned to service,
immediately, with seniority rights, vacation rights, and all other
benefits that are a condition of employment, unimpaired, with
compensation for all lost time, plus 6% annual interest.
Also, reimbursement of all losses sustained, account loss of coverage
'° under Health and Welfare and Life Insurance Agreements during the time
held out of service.
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 employes 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, Enginehouse Laborer Patrick Gilmartin, entered the service of
Carrier, Belt Railway Company of Chicago, on July 5, 1979.
By certified letter dated June 18, 1982, the Claimant was requested to attend
an investigation on June 21, 1982, in connection with the following charges:
To discover the cause, develop the facts and determine
your responsibility, if any, in connection with your
reported indifference to duty, insubordination, and quarrelsome and viciousness to Diesel Foreman R. J. Downs, and
you are being found in violation of General Rule G at
8:10 p.m., Thursday, June 17, 1982, in Clearing Diesel
Shop while you were working your regular 3:30 p.m. Enginehouse Laborers assignment.
Form 1
Page 2
Award No. 10156
Locket No. 10257'
2-BRCofC-FO-184
General Rule G states:
"The use of alcoholic beverages, intoxicants,
narcotics, marijuana or other controlled substances
by employees subject to duty, or their possession
or use while on duty or on Company property, is
prohibited.
Employees must not report for duty under the influence
of any alcoholic beverage, intoxicant, narcotic,
marijuana or other controlled substance, or medication,
including those prescribed by a doctor that may in any
way adversely affect their alertness, coordination,
reaction, response or safety."
After an investigatory hearing, Claimant was dismissed from the service on
June 21, 1982. The Carrier notified Claimant that:
"...The transcript of
investigation establishes
your
responsibility for violation of Belt Railway Company
General Rules A, G, J, and H in that you were
indifferent to duty, insubordinate, quarrelsome, and
vicious to Diesel Foreman R. J. Downs and that you were
in violation of General Rule G at about 8:10 p.m.,
June 17, 1982, in Clearing Diesel Shop, Chicago, while
you were working your regular 3:30 p.m. Enginehouse
Laborers
assignment..."
The Organization contends that Claimant was unjustly dismissed from service
because Carrier failed to produce sufficient evidence to substantiate the charge.
Moreover, the Organization contends that the Carrier failed to meet its burden of
proof that Claimant had been drinking on the night in question.
The Carrier contends that the evidence establishes the following facts:
that on June 17, 1982, Shop Foreman Richard Downs could not locate Claimant; he
finally found Claimant outside the shop building talking to two other laborers;
the Foreman placed his left hand on the right arm of the Claimant and instructed
him to return to his work location in the Diesel Shop; once they returned to the
shop building, Foreman Downs attempted to give Claimant a work assignment, but
Claimant stated, "Don"t you ever put your hands on me again you son of a bitch
W;
and, "If you ever put your mother f hands on me you son of a bitch, I will
beat the shit out of you".
The Carrier also contends that the evidence shows that during the statements
of the Claimant, the Foreman detected alcohol on his breath. The Foreman called
the Belt police who dispatched two officers to the Foreman's office. Both of
those officers smelled alcohol on the Claimants breath. Moreover, the Foreman
saw the other characteristics of the Claimant, which denoted drunkenness, such as
slurred speech, erratic mannerisms, and bloodshot eyes, which
convinced the
Foreman
that the Claimant had been drinking.
Form 1 Award No. 10156
Page 3 Docket No. 10257
2-BRCofC-FO-'84
Carrier argues that the use of alcohol is a serious offense in the railroad
industry and that numerous awards have held that management need not tolerate
such conduct.
This Board has reviewed all of the evidence and testimony in this case, and
it finds that there is sufficient evidence in the record to support the finding
that Claimant violated Rule G, which prohibits employes from being intoxicated on
the job. This Board also finds that the Claimant acted in a threatening and
abusive manner toward his supervisor. This Board rejects Claimant's contention
that nothing of the sort happened.
Hence, this Board finds that Carrier was justified in finding the Claimant
guilty as charged.
Moreover, this Board will not normally set aside the disciplinary action
taken by a Carrier unless it is arbitrary, discriminatory, or capricious. Since
the Claimant has previously received a four-month suspension from December 8,
1982, to April 20, 1983, for a previous violation of Rule G (reduced from a
dismissal), as well as two other suspensions for other wrongful behavior, this
Board finds no basis to set aside the penalty of dismissal issued by the Carrier
in this case.
A W A R D
Claim denied.
NATIONAL RAIROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J ~ ver - Executive Secretary
Dated at Chicago, Illinois this 14th day of November 1984.
D