Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11496
SECOND DIVISION Docket No. 11366
88-2-87-2-18
The Second Division consisted of the regular members and in
addition Referee Ronald L. Miller when award was rendered.
(International Association of Machinists and Aerospace
( Workers
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
1. That under the current agreement the Burlington Northern Railroad
wrongfully dismissed Machinist A. G. Lopez effective October 8, 1985.
2. That, accordingly, the Burlington Northern Railroad reinstate
Machinist A. G. Lopez to service with seniority rights unimpaired and all
other rights and privileges restored and compensate Machinist Lopez for all
wages as a result of his dismissal including time withheld from service
pending investigation.
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 employees 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.
The Claimant was employed as a Machinist. The Claimant was dismissed
from service with the Carrier on October 8, 1985 for allegedly violating Rules
565 and 566 (consuming alcoholic beverages when subject to duty and reporting
for duty under the influence of alcoholic beverages).
The Claimant has appealed his dismissal, in part, on the ground that
he was not provided a fair, just and impartial hearing because of the multiple
roles fulfilled by the Hearing Officer.
Form 1 Award No. 11496
page 2 Docket No. 11366
88-2-87-2-18
Numerous decisions by this Board, Boards of other Divisions and
various Public Law Boards provide no uniform conclusions concerning the
multiplicity of roles. A majority of those decisions do not find prejudicious
action simply because the Hearing Officer fulfilled multiple roles. Correctly, in our judgment, the Boards have commonly looked at the specific relationships between those rules and the conduct of the investigative hearing. A
careful reading of the record of this case indicates no adverse or detrimental
relationships. There is no evidence that the Hearing Officer's multiplicity
of roles denied any element of due process to the Claimant.
Moving to the substance of the charges against the Claimant, the
Organization contends that there is not adequate and substantial evidence of
record to support the charges against the Claimant. We reach a contrary
conclusion. The Claimant admits to drinking beer between 6 and 9 P.M. prior
to reporting for work at 11 P.M. Additionally, he testified that he withdrew
his consent to take a blood test because:
' .. I knew that they were going to find the
liquor, the beers I had drank before..."
The Claimant's foreman detected the smell of alcoholic beverages, and
the Special Agent also detected the smell of alcohol emanating from the Claimant. Under close examination, the Special Agent noticed that, "...his eyes
were quite glassy and bloodshot and his pupils seemed to be quite dilated in a.
brightly lit office area
...."
There is substantial evidence in the record
from which to conclude that the Claimant consumed alcohol shortly before reporting for work and that he reported for duty under the influence of alcohol.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. D e~/- Executive Secretary
Dated at Chicago, Illinois, this 15th day of June 1988.