NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Edward A. Lynch, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the effective Agreement, when on April
19, 1956, it dismissed Section Laborer Lawrence Williams from its
service;
(2) Section Laborer Lawrence Williams be restored to service,
with seniority, vacation and other rights unimpaired and reimbursed
for all wage loss suffered since April 29, 1956 because of the violation
referred to in Part (1) of this claim.
OPINION OF BOARD:
The facts of record in this case need not be
repeated here.
Nineteen denial awards of this Division have been cited by or in behalf
of Carrier, many of which have no bearing on the issue before us.
One of them, however, does cover an important fact in this case because
Claimant was on his rest day when the incident occurred. We quote from
Award 6332 (Smith):
" * * * What an employe does when off duty and not on the
property of his employer is no concern of an employer and will not
warrant disciplinary action unless such acts impair his ability or
render him unfit to perform his duties after reporting for duty. * * * "
The same pronouncement is found in two awards cited in behalf of the
Organization:
Award 2991 (O'Malley):
"*
* * From that evidence, all reasonable men must conclude
that there was no use of intoxicants on the property of the Carrier;
there was no intoxication; there was nothing which in any way would
or could affect the Company business."
[876]
8689-2
S77
Award 3411 (Tipton):
"What an employe does when off duty and not on the property
of the Carrier would not justify discipline so long as his conduct does
not interfere with his work. * * *"
There is no showing here that the incident complained of affected claimant's ability to perform his work.
Argument made in Carrier's behalf, however, contends that in numerous
awards we have recognized that certain conduct of an employe while he is
off duty and off company property will subject him to discipline by Carrier
the same as if he were on duty. Award 5104 (Parker) is cited, a portion of
which reads:
" * * * Management is responsible for the conduct of its Pullman
Porters and duty bound to man its cars with individuals who merit
the confidence and trust of the traveling public and can be depended
upon to protect the safety and well being of individual passengers.
In fact it would be derelict in the performance of its obligation to
the traveling public if, convinced such employes no longer possess the
attributes to which we have referred, it continues to retain them in its
employ in that capacity. * * * "
We find no fault with such principle.
While we have no intention of reflecting in any way whatever upon the
status, social or otherwise, of a laborer, by no stretch of the imagination can
we see how the conduct of a section laborer at Bowling Green, Kentucky, on
his rest day, and off company property, could ever threaten the safety and
well-being of the traveling public or their trust and confidence in a carrier.
The claim will be sustained, subject to Rule 27(f).
FINDINGS:
The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employe involved in this dispute are respectively
Carrier and Employe within the meaning of the Railway Labor Act, as
approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained in accordance with Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 16th day of January, 1959.
8689-3
$ 7 $
DISSENT TO AWARD NO. 8689, DOCKET NO. MW-8968
The majority opinion in Award No. 8689 is
m
gross error in declaring
Claimant not guilty as charged and ordering his restoration to service with
pay for all time lost, subject to Rule 27(f), in the face of a record clearly
proving Claimant guilty as charged.
On April 10, 1956, Claimant was advised that he was dismissed from the
service of the Carrier on charges set forth in the Division Engineer's letter
of that date. This letter read in part as follows:
"It has been brought to my attention that you were arrested at
5:45 P.M. on March 31, 1956 by a Police Officer of the City of Bowling
Green, Ky., and were charged with having alcoholic beverages for
sale, under Police Court Docket #36597 and selling alcoholic beverages, Police Court Docket #36600 and that you pleaded guilty to both
charges and was find $169.00 on each of these charges, making a total
of $218.00.
"Rules and instructions in the Maintenance of Way Department
of this Railroad Company prohibits their employees from trafficking
in intoxicants. This is covered by Rule Gl of Page #12 of the Book
of Rules." (Emphasis added)
General Rules G1 and G2 governing employes in the Maintenance of
Way Department of this Carrier read as follows:
"Gl. Any employe who is convicted in an established court of
unlawfully having had in his possession or
unlawfully trafficking in
commodities, such as intoxicants, or drugs, such as morphine, cocaine,
opium, etc., will be subject to dismissal." (Emphasis added)
"G2. It is required that employes be of good moral character,
avoiding violations of the law, which always reflect on and thus injure
both their fellow employes and the Company."
Following his dismissal on April 10, 1956, Claimant made a request to
the Division Engineer for a formal hearing, which was conducted on April
25, 1956. Transcript of the investigation appears in the record.
Claimant appeared and was represented at the hearing by a member of
the Organization. He admitted he had a fair and impartial hearing.
When a representative of the Police Department entered his premises with
a search warrant, Claimant denied having any liquor. However, two half-pints
of whisky were found and confiscated by the Officer. This is admitted by
Claimant.
The following is taken from the Bowling Green Police Department arrest
book:
"Lawrence Williams (col) 615 Kentucky Street Arrested 5:45
P.M. 3/31/56 at Kentucky and Sixth Street, having alcoholic beverages for sale. Fined $109.00 on plea of guilty. Docket #36597.
Arrested by officers Eatherly, S. Young Ashby, Brumit, L. Young,
and M. Lowe.
8689--a
879
"Lawrence Williams, Docket #36600. Selling alcoholic beverages
without license. Fined $109.00 on plea of guilty Policy Court. Time,
place arresting officers same as above. Total fines $218.00:"
Claimant pleaded guilty to the charges and paid a total fine of $218.00.
Claimant admitted at the investigation that he was required to be conversant with and obey the rules and special instructions of the Carrier and, if
in doubt as to their proper meaning, must apply to the proper authorities for
an explanation.
For the above reasons, we dissent to this Award.
/s/ C. P. Dugan
/s/ J. F. Mullen
/s/ R. M. Butler
/s/ W. H. Castle
/s/ J. E. Kemp