BROTHERHOOD OF RAILWAY, AIRLINE AND STEAM
SHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL.6489) that:
OPINION OF BOARD: On December 1, 1967, Claimant was charged in a letter from the Superintendent with having used and having been under the influence of alcoholic beverages while on duty, in contravention of the Safety Rule Book. On December 4 an investigation was held by the Assistant Superintendent, at which time several witnesses testified that they smelled "fresh" alcohol on Claimant's breath, and on December 13, Superintendent Heimsjo wrote and informed Claimant he was dismissed from service as a consequence of the findings from the investigation that he had "used alcoholic beverages while employed . . . ."
Carrier alleges that Claimant violated the following two rules of the Northern Pacific Safety Rule Book Form 541:
On the other hand, Employes, in behalf of Claimant, allege that the charges against Claimant were not sustained by the evidence adduced at the
investigation, and further, that Claimant was denied a meaningful review of the discipline administered, and that the discipline was excessive.
As to the merits, Claimant was charged with having used and being under the influence of alcoholic beverages while on the job. Carrier's witnesses testified that "fresh" alcohol was smelled on Claimant's breath. No evidence was presented that Claimant acted or spoke abnormally. It was not alleged that he did not perform his duties properly or otherwise. Witnesses merely smelled alcohol. And as a consequence, Claimant was notified that he was dismissed from service.
This Board has said on many occasions that drinking while on the job is a serious offense one which endangers the welfare and safety of fellow employees. But this Board has also stated that whereas we will not disturb the findings of an investigation where the evidence is sufficient to sustain such findings, we can and will overturn the findings where insufficient evidence has led Carrier to abuse his discretion. Regardless of the frail defense put forward in behalf of Claimant, the burden of proving the charges was on the Carrier, and this Board finds that Carrier did not meet that burden and that. Claimant was dismissed on findings based on insufficient evidence.
We further agree that for one whose record shows no prior disciplinary action for thirty-one years, as is the case with the instant Claimant, the discipline meted out was clearly excessive.
We also agree with Claimant that he was denied a meaningful review of the discipline administered. Rule 55, "Grievances", under the existing Agreement reads, in part, as follows:
Here, the Superintendent made the charges. The Assistant Superintendent conducted the investigation. Then the Superintendent who was not present
then administered the discipline. And then to make matters worse, Carrier's General Manager, in further declining to restore Claimant to his job, states that the investigation had clearly indicated that Claimant was "under the influence of alcoholic beverages . . . . 11
This Board finds with the Employes on each of the three grounds advanced here and thus sustains Claimant's position.
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 Employes involved in this dispute are respectively Carrier and Employes 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