NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-21483
(Roberto Lebron
PARTIES TO DISPUTE:
(Brooklyn Eastern District Terminal
STATEMENT OF CLAIM: This is to serve notice, as required by the rules of the
National Railroad Adjustment Board, of my intention to
file an ex parts submission on January 8, 1976 covering an unadjusted dispute between me and the Bro
question:
a) Carrier violated the agreement when it failed to
provide Mr. Roberto Lebron a fair and impartial hearing on February 19, 1975 in connection with alle
violation of Rule "G" and Rule "X" - General Rule -
B.E.D.T.
b) As a result of this violation, Carrier will reinstate
me with all seniority rights unimpaired.
c) Restoration to me for all lost compensation.
OPINION OF BOARD: Claimant Roberto Lebron was employed by Carrier as
Laborer at its Bulk Flour Terminal - Brooklyn, New
York. By notice dated February 10, 1975 Claimant was advised as follows:
"REGISTERED MAIL
RETURN RECEIPT REQUESTED February 10th, 1975
File: FFD-40169
Subj: Investigation.
Mr. Roberto Lebron,
102 Floyd Street,
Brooklyn, N.Y. 11206
Dear Sir:
Please report to Superintendent's office at 86 Kent
Avenue, Brooklyn, N.Y. at 10:00 A.M. Wednesday, February
19th, 1975, for investigation incident to your failure to
properly protect your assignment as a laborer - Bulk Flour
Terminal - February 7th, 1975 2300 hours.
Incident to the above, you are charged with violation
of Rule G and Rule X General Rules - Brooklyn Eastern District Terminal - which reads as follows:-
Award Number 21241 Page 2
Docket Number MS-21483
RULE G -
The use of intoxicants or narcotics by.employees subject
to duty, or their possession or use while on duty is prohibited and in sufficient cause for dismissa
ISJLE X -
Employees reporting for duty must have had ample rest. Employees must not sleep on duty.
You are privileged to have present at this investigation
a representative of your choice or such witnesses as you may
desire.
Yours very truly,
/s/ A. A. Lembo
A.A. IM-1B0
SUPERINTENDENT OF OPERATIONS"
Following the investigation Claimant was found guilty and discharged effective February 27, 1975. Cl
which was granted and appeal denied April 3, 1975 by Carrier's V.P. Operations and Maintenance. By l
of the Brotherhood of Railway, Airline and Steamship Clerks made further appeal on Claimant's behalf
hearing was granted, following which the appeal again was denied on April
22, 1975. Thereafter Claimant initiated an Ex Parts Submission to our Board
alleging denial of his right to a fair and impartial hearing and seeking
reinstatement with full back pay.
The scope of this Board's appellate jurisdiction is well established in discipline matters. We are t
supports Carrier's finding of culpability, and 3) Whether the discipline
assessed is appropriate in all of the circumstances, or is arbitrary, or
unreasonable or capricious. As we view the record there in no question
that substantial evidence supported the findings of Carrier that Claimant
was asleep and under the influence of an intoxicant while subject to duty
on February 8, 1975. The testimony of two eyewitnesses that he was sleeping on duty was never denied
several shots of whiskey before reporting to work, although he denied actually drinking on the job.
Carrier based its findings on insubstantial evidence or information not on
the record. Nor is there any doubt that such offenses when proven are recognized dismissal offenses
Award Number 21241 Page 3
Docket Number M9·21483
assertions that the hearing was not properly conducted because of the
bias and multiple roles of the hearing officer. We have carefully reviewed
the entire record and find that these allegations were raised for the first
time before our Board, never having been presented on the property. Such
de novo arguments are not properly before us and cannot be considered. So
much of the record as we may consider demonstrates no deprivation of Claimant's rights to a fair and
entire record we must deny the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 28th day of September 1976.