NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION




PARTIES TO DISPUTE:
 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES



OF CLAIM: Claim of the System Committee of the Brotherhood that:


      (1) The dismissal of Machine Operator H. A. Cuddy on January 12, 1968 was without lust and sufficient cause and based upon unproven charges.


      (2) Machine Operator H. A. Cuddy now be returned to service with all previous seniority unimpaired and he be compensated for the wage loss suffered by him (Rule 62(g)) because of the violation referred to in Part (1) of this claim.


OPINION OF BOARD: Having originally been charged with violations of General Rules A and G and Rules 700, 701, 701(B), 702, and 702(B), Claimant was finally dismissed after an investigation which found him guilty of "quarrelsome and insubordinate behavior" and having been "observed under the influence of intoxicants," those being the specific violations of Rules G and 700 cited by Carrier.


The only issue before the Board is that of a claim for back pay since the Claimant was subsequently restored to work.


It would be considerably easier for this Board to leave the findings of the investigation undisturbed since the record shows conflicting testimony as to the facts, and especially since Claimant has been restored to work. But this Board cannot shrink from the fact that a thorough review of this record shows that the Carrier has failed to establish by a clear preponderance of substantial and competent evidence of probative value that the Claimant was "under the influence of intoxicants, insubordinate, quarrelsome" . . . . all or any one of them.


First, the investigation found Claimant to have been "observed under the influence of intoxicants." Claimant's superior and one other claimed they could smell alcohol. Still another said that although he could not smell it, he observed a fan being turned on to dispell the smell of alcohol. Yet, Claimant denied having been in such a state. The Agent, of whom he requested permission to voluntarily have the Carrier's doctor check him for intoxication, stated he could not smell alcohol. The Carrier's doctor, who was not called at the investigation, saw Claimant within an hour of this alleged "observation" and certified: "Mr. H. A. Cuddy (Claimant) was in my office on January 12, 1968 and that morning he was not intoxicated." Surely, as to being "under the

                  y TTLLT


'VSn UT palulxa goZgD 'puI 'srlodsuslpul <.o0 Sur jexlua0

          'OL6T Aj8naqag;o Asp qlog slqi'sloucllI'o2ealy0 Is pa;sa


            AasZaxaaS enlinoaxa

            AllnqoS'H'S ·.Lsa,L.LV


    uolslel(I palq,I·, so aapa0 AE[

    QHVOg.LN3WLSflfOV QVOU'IIVH'IVxOIZVAI

    .paulslsna mlsl0


                QHVAAV

                ,paqslole sem luawaax2V aql lsqy


pus :u;aaaq paelonulaqndslp
 eql JOAO uollatpslanf seq pasog luamlsnrIpV all ;o UolsTn;Q scy; leqy

 4£6T'TZ aunt panotdde on 'laV
 aoqs·I AsmIleg aaql ;o 2ulusam aq; ulq;lm sa&oldwa pus aacaas0 Alaellaads
 -ax aas alndscp sill ut panloeuc saAoldma aql pus zalaaso aql 4vqLL

 :sploq pus spul;'aauaplea aql llg pus paoaaa
 aloqm aql uodn pus 'uosaaql 2ulxsay ;o aagou sup alndslp sly; of seRJt ud aqj
 2ulni2 ialp 'pasog luaur;snfpV aql ;o uocslnc(I palqy aqy : SOHIQAII3

 -unsla sill ulqlcm paqsanbai luauiAsd
 3lasq aql aYlscu O;.palaailp or aalzas0 ';ooad so trapanq s;l pane; 2UCneH

 -luam
 -aat2V ay; ;o uoclsloln a anoad AIasala o; apnllu2em aq; ;o 2ucq;AUS piss
 ao pip ;uswlsla jsql troy luaquoa Aug l.zoddns lou swop paoaaa aql 4nq 'aoscn
 -aadns siq pus ;uswmla aql uaamlaq ua3lods uaaq port spaom SlaanS *3laom
 of zapao Ann pasn;aa jusmcel0 ;eq; alsacpuc paoaaz aq; saop aaaqmou 'aaqlan3
 ·paul2scal jo Iona 'luamssauey Jos (s)aasnaes slq luoa;uoa loJ. Asw aaSold
 -we us ;ell ;ucod all of lualls Al:adoad LS, 4uavxaaa2V aqy ,*Omosjajannb
 pus aqaucpioqnsul_ uaaq ansq of puno; ssm 4usmlslo aql 'AlpuooaS

                        laauaplea aq; so aausaapuodaad

e 14 ;oozd ;o uapanq s;; III pane; ssq aalaasD eql _slusolxolixl'`;o aauanl;ul