NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25371
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackman F. Johnson, Jr. for alleged violation
of "Rule C", 'Rule F" and "Rule J" was without just and sufficient cause and
on the basis of unproven charges (System Docket 392D).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, his record cleared of the charges leveled against him and
he shall be compensated for all wage loss suffered.
OPINION OF BOARD: The record shows that Claimant entered Carrier's service
as a Trackman on July 10, 1976, and was working in that
capacity at the time of the occurrence giving rise to the dispute herein.
On February 10, 1982, Claimant was notified to attend a trial on
March 2, 1982, on the charge:
"Violation of N.R.P.C. Rules of Conduct, General Rule C
reading as follows: 'Reporting for work under the influence
of alcoholic beverages or narcotics, or the use of
alcoholic beverages while on or subject to duty or on
Company property is prohibited.'
Violation of N.R.P.C. Rules of Conduct, General Rule P,
reading in part: 'Employees will not be retained in the
service who are careless of the safety of themselves
or others.'
Violation of N.R.P.C. Rules of Conduct, General Rule J,
reading as follows: 'Courteous conduct is reguired of
all employees in their dealing with the public, their
subordinates and each other. Boisterous, profane or
vulgar language is forbidden. Violence, fighting,
horseplay, threatening or interferring (sic) with other
employees or while on duty is prohibited.'
Specification: In that you were observed under the influence
of alcohol while on Company property at Pennsylvania
Avenue, Baltimore, Maryland, on January 29, 1982 between
the hours of 4:30 p.m. and 6:00 p.m., endangering the
lives of yourself and others."
Award Number 25161 Page 2
Docket Number MW-25371
The trial was held as scheduled. Claimant was present at the trial
and was represented. A transcript of the trial has been made a part of the
record. A review of the transcript shows that the trial was conducted in a
fair and impartial manner. There was objection to Claimant's prior discipline
record being made a part of the trial. Such procedure was not in violation
of any Agreement rule, nor was it prejudicial to Claimant. See Award 22740
and others cited therein. The prior record may always be considered in
determining the discipline to be imposed for a proven offense, but may not be
used to prove the charge under investigation. Following the trial, Claimant
was dismissed from Carrier's service on March 16, 1982.
In the trial there was direct testimony from Carrier's Police Officer
that on January 29, 1982, she observed Claimant on Company property in a
highly intoxicated state; that he had a strong odor of alcohol, was staggering
and could hardly stand up; his speech was slurred and he was very argumentative.
She went on to testify that she approached the Claimant the second time on
January 29 and asked him for his or his foreman's name; that Claimant responded
to her in a vulgar manner, but did not give his name or his foreman's name,
and departed the scene. During the trial Claimant contended that he did not
remember the occurrences of January 29, 1982. His contention in this respect
is not persuasive, and certainly does not offset the direct testimony of the
Police Officer.
The contention has been made concerning the competency of the Police
officer to determine that Claimant was intoxicated. It has been held on
numerous occasions that laymen are competent to judge intoxication without
the aid of medical or other scientific tests. See Awards 10040, 13481, 24531,
among others.
The contention is also made that it was improper to find Claimant
in violation of the rules on the testimony of one witness. That is not exactly
the case here - see the testimony of Electrician L. H. Bailey. However, many
disciplinary cases have been decided on the basis of the testimony of one
witness against the accused. As stated in Award No. 24388:
'In such cases the issue then comes down to the credibility
of witnesses, as judged by the hearing officer."
See also Award No. 24640.
There is no proper basis for the Board to interefere with the discipline
imposed by the Carrier.
Award Number 25161 Page 3
Docket Number MW-25371
FINDINGS: The Third Division of the Adjusment 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:
Nancy er - Executive Secretary
Dated at Chicago, Illinois this 30th day of November 1984.