Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11981
SECOND DIVISION Docket No. 11739-I
91-2-89-2-48
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Thomas P. Tierney
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Western Lines)
STATEMENT OF CLAIM:
Reinstatement, seniority unimpaired and compensation for all time
lost due to being improperly dismissed as Carman as a result of investigation
held on April 20, 1987, in Tucson, Arizona.
Southern Pacific states in its investigation that urine test taken on
April 3, 1987, showed that excessive alcohol was in my urine. However, report
from Roche Biomedical Laboratories clearly states that specimen was taken on
April 2, 1987, and not April 3, 1987. Therefore, there is no way that this
urine was mine or the urine that was used in the test could have been mine.
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 were given due notice of hearing thereon.
Claimant was employed by the Carrier as a Carman on its Tucson
Division, Tucson, Arizona.
On April 14, 1987, the Carrier notified the Claimant to appear for a
formal Investigation on the following charge:
'.
. . violation of Rule G of the General Rules and
Regulations, Southern Pacific Transportation Company .
. . . to develop the facts and place responsibility, if
any, in connection with your allegedly being under the
influence of alcohol while working as carman at Rip
Track, on duty time 7 a.m., April 13, 1987, which was
confirmed by the evidence of excessive alcohol in your
body fluids . . .'
Form 1 Award No. 11981
Page 2 Docket No. 11739-I
91-2-89-2-48
The Hearing was held on April 20, 1987. On that same date, the Carrier
notified the Claimant that he had been found guilty of the charge and was
assessed discipline of dismissal. Thereafter, the Claimant filed a Claim
challenging his discipline.
This Board has reviewed the procedural arguments raised by the
Carrier and we find them to be without merit.
With respect to the substantive question, this Board has thoroughly
reviewed the evidence and testimony in this case, and we find that there is
sufficient evidence in the record to support the finding that the Claimant was
guilty of a Rule G violation on April 3, 1987. The record reveals that the
Claimant was working on that date and he exhibited some of the characteristics
of being under the influence of alcohol, including glassy eyes and unsteady
gait. The Carrier ordered the Claimant to take a urine test, and the results
of that test proved that the Claimant was under the influence of alcohol with
a level of .14%.
The Claimant's major argument revolves around the fact that the
specimen date indicated on the report from the laboratory shows April 2, 1987,
and then it later indicates the date of the receipt as April 4, 1987. The
date of the report is April 7, 1987. The Claimant contends that since the
Carrier pulled him out of service and had the specimen taken on April 3, 1987,
it is clear that the specimen that was tested, that showed positive for
alcohol, was not his.
After a thorough review of the record, this Board finds that the
evidence is clear that the specimen tested was, in fact, that of the Claimant.
There were a number of dates that were wrong that were included on the various
documents. As a matter of fact, on a form filled out by the Claimant himself,
the specimen date is listed as 'Karch 2, 1987. However, that very form from
the medical laboratory shows a date stamp of April 3, 1987. All of the evidence viewed as a whole makes it clear that the urine that was tested by the
medical laboratory was that of the Claimant. There is really no challenge to
the result that that urine was positive for alcohol. Therefore, the Claimant
was clearly guilty of the Rule G violation.
Once this Board has determined that there is sufficient evidence in
the record to support the guilty finding, we next turn our attention to the
type of discipline imposed. This Board will not set aside a Carrier's
imposition of discipline unless we find that the Carrier's action was
unreasonable, arbitrary or capricious.
In the case at hand, the Claimant was previously dismissed for a Rule
G violation in 1983. He was reinstated and was subsequently dismissed and
reinstated again in 1985. Given the nature of the infraction here and the
previous disciplinary history of the Claimant, this Board cannot find that the
action taken by the Carrier was unreasonable, arbitrary or capricious.
Therefore, the Claim shall be denied.
Form 1 Award No. 11981
Page 3 Docket No. 11739-I
91-2-89-2-48
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
N~ J. - Executive Secre ry
Dated at Chicago, Illinois, this 16th day of January 1991.