Award No. 19180 Docket No. CL-19499

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

William '_VI. E dgett, Referee

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP

CLERKS, FREIGHT HANDLERS, EXPRESS AND

STATION EMPLOYES

THE CHESAPEAKE AND OHIO RAILWAY COMPANY

(Chesapeake District)

STATEMENT Op' CLAIM. Claim of the System Committee of the Brotherhood (GL-70x7):

(a) That the Carrier violated the Clerks' General Agreement, and Supplexrnants thereto, when on February 3, 1970, Mr. .lake Rhoden was relieved from active service with the Chesapeake and Ohio Railway Company, and,

(b) That Mx. Jake F,,hoden be reinstated and paid $24.1 per day for .each day he has been held out of service and until he has been reinstated.

OPINION Oh' BOARD: Claimant aras observed on February 3, 1970 acting in an unusual manner. Carrier's supervisory employes investigated and concluded that Claimant was under the influence of alcohol. He was suspended from service and taken to his home by two special agents.

At the investigation five witnesses testified, giving their observation of Claimant's behavior. Each witness expressed an unreserved opinion that Claimant was intoxicated. Three of the witnesses were supervisory personnel and two were special agents of the Carrier. Each of them had ampl·,^ opportunity to observe Claimant; and were able to support their opinion with pertinent observations.

,Claimant, on the date in question, asserted he was sick. At the. investigation he asserted that he was taking a cough medicine containing alcohol. Carrier confirmed that he had visited the first aid facility and had been given a cold preparation by the nurse.

The Organization insists that Carrier committed an error, fatal to its case, when it did not sand Claimant to the first aid station for a check up beforesending him home. hta assertion amounts to insistence that medical evidence to support a finding of intoxication is essential. The Organization concludes that ,Carrier has not sustained its burden of proof.

This contention is' not meritorious. Carrier had ample evidence with probative value an which to base its conclusion that Claimant was intoxicated. Five competent witnesses so testified. Claimant's assertion on February 3 that he was sick and his later statement that he wars taking a cough medicine containing alcohol do not demonstrate that Carrier failed to properly investigate the facts or that it failed to base its conclusion on susbstantial evidence of record.

Two persons with knowledge of. the feats .were not called. Claimants' representative was present on February 3 when he was questioned and suspended. Claimant did rob choose to call him as a witness at the investigation. Carrier's nurse saw Claimant on February 3 and neither Carrier or Claimant chose to call her. The Board cannot speculate on what their testimony might have been or on the tactical decision, if such it was, not to call them.

For the reasons statedthe claim must be denied.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

Than the parties waived oral hearing;

That the Carrier and the Employer involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, ass approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved. herein; anti

That the Agreement was net violated.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: E. A. Killeen

Executive Secretary