NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-21420
Nicholas H. Zumas, Referee
'(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Louisville and Nashville Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Machine Operator C. E. Ward was
without just and sufficient cause and on the basis of unproven charges
(System File 1-5 (11)/D-105492 E-306-5).
(2) Machine Operator C. E. Ward be reinstated with seniority,
vacation and all other rights unimpaired and he be compensated for all
wage loss suffered; all in accordance with Rule 27(f).
OPINION OF BOARD: A review of this record, including the transcript of
hearing, reveals that there was substantive evidence
of probative value that Claimant, on the date of the incident, violated
Rule "G".
Even though Dr. Flowers (who examined Claimant) was not present
at the hearing, the Roadmaster testified that Dr. Flowers told him immediately
after the examination that the only thing wrong with Claimant was that he
was in a "stuperous drunk." Contrary to the assertion of the Organization,
such testimony was not hearsay and was properly considered by Carrier. Dr.
Flowers' statement to the Roadmaster was confirmed by a medical report of
the doctor's examination, and that letter was made part of the record.
While there was testimony by Claimant's co-workers that they
did not smell alcohol on his breath and did not see him take a drink, this
Board, as has been held many times before, has neither the capability or
the mandate to weigh conflicting testimony. It is limited to a determination of whether there was su
Carrier's action.
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;
Award Number 21333 Page 2
Docket Number MW-21420
That this Division of the Adjustment Board has jurisdiction aver
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 30th day of November 1976.
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