Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10261
SECOND DIVISION Docket No. 10267
2-BN-EW-185
The Second Division consisted of the regular members and in
addition Referee Cohen when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute: (
( Burlington Northern Railway Co.
Dispute: Claim of Employes:
1. That in violation of the current Agreement, Electrician J. Harris was
prematurely disciplined when he was improperly withheld from service
prior to the holding of a fair and impartial investigation.
2. That the investigation held on April 21, 1982 was not a fair and impartial
investigation and in addition the Burlington Northern Railroad failed to
prove the alleged Rule violations.
3. That the assessed discipline was excessive in relation to the charges and
the circumstances present.
4. That accordingly, the Burlington Northern Railroad be ordered to make the
aforementioned J. Harris whole by restoring him to its service with seniority
rights unimpaired and compensate him for all wages lost plus 16% annual
interest. Claim also includes reimbursement for any losses sustained by
the Claimant as the result of lost coverage under health, welfare and
life insurance agreements resulting from his unjust dismissal from sex-vice.
Claim to begin April 1, 1982 and continue until J. Harris is made whole and,
returned to 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 Acct
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute wavied right of appearance at hearing thereon.
In April 1982 the Claimant was employed as an Electrician at the Carrier's
facility located at Memphis, Tennessee.
As a result of an investigation that was held on April 21, 1982, the Claimant
was dismissed from service for violating Rules 565 and 566 on April 1, 1982. These
Rules provide in relevant part:
Form 1
Page 2
Award No. 10261
Locket No. 10267
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2-BN-EW-185
"Rule 565: 'The use of alcoholic beverages *** by employees
subject to duty *** is prohibited.
Rule 566: 'Employees must not report for duty under the
influence of any alcoholic beverage ***.'"
Both Trainmaster S. F. West and General Foreman D. W. Williams testified that
they could detect a strong odor of alcohol on the Claimant's breath soon after the
beginning of his shift, when he received his work assignment. The Claimant acknowledged
that he "had a few drinks five hours" before he "came to work". It was the Claimant's
51st birthday and he had been celebrating with friends.
It is fairly well established in the railroad industry that reporting to work
under the influence of alcohol is subject to severe discipline, including discharge.
However, it should be pointed out that Rule 566 does not mandate dismissal from
service. It should also be underscored that it is not for the Board to substitute
its judgment except under limited and extenuating circumstances. Such circumstances
are present in this case.
In light of his
nine (9
) years of service with the Carrier, the Grievant's
conduct on April 1, 1982 was an isolated episode. The Claimant's conduct cannot be
condoned, and if repeated, it would merit dismissal from service. However, based
on the record in this case, the Board deems the penalty of dismissal to be excessive,.#
As a result, the Claimant shall be reinstated to service, with seniority unimpaired
but without compensation for time lost.
A W A R D
Claim sustained in accordance with Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
r
Nancy
Executive Secretary
Dated at Chicago, Illinois this 13th day of February 1985.