NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25772
Herbert L. Marx, Jr., Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The twelve (12) working days of suspension imposed upon Camp
Attendant T. Christmas for allegedly 'Threatening foreman, J. J. Smith with
bodily harm' and allegedly 'Reporting for duty in an intoxicated state' was
without just cause and on the basis of unproven charges (System Docket
CR-66-D).
(2) The claimant's record shall be cleared of the charges leveled
against him and he shall be compensated for all wage loss suffered."
OPINION OF BOARD: Claimant is a Trackman assigned to duty living away from
home in a Camp Car. He was subject to an Investigative
Hearing on the charges of threatening his Foreman "with bodily harm" and
"reporting for duty in an intoxicated state". As a result of the hearing,
Claimant was assessed a disciplinary penalty of 12 working days' suspension.
The incident giving rise to the charges concerned events of August 4,
1982, when the Foreman awoke the Claimant in the camp car prior to the work
day. The Foreman testified as follows:
"I woke Thomas Christmas twice. I left
the Camp Train, went to the office, I
told Dick and Ed that I don't think Tom
is going to make it. So, it was time to
go to work, I was heading back towards
the bus, as I was going up the step to my
car to get a hanky, Tom was yelling at
me, yelling Joe Smith. He yelled twice
to me, Joe Smith. He said to me don't
ever come back to our car again, if you
do, I am going to kill you, and I said
what did you say, you heard what I said,
I am going to kill you. I went off the
step, I gave him a little shove and I
told him, if you threaten me, you better
do it now, if not, don't ever threaten me
again. Mean time, somebody walked by,
told Tom to lay down, make believed that
Joe heard you back, so he squat down, so
a couple men gathered around, one guy
grabbed hold of Tom, picked him up, told
him to get on to the bus.
Award Number 25849 Page 2
Docket Number MW-25772
Q. Mr. Smith, who gave you orders
to go through the camp cars and wake
people up.
A. My orders since we moved here
was by our Supervisor, but the Supervisor
was not there that morning, so, the Foreman, told me to go through.
Q. Mr. Smith, in your conversation
with Mr. Christmas, was there anything
different about Mr. Christmas, was he
dressed for work.
A. Yes, he was dressed for work.
To my opinion, he was intoxicated.
Q. Mr. Smith, did you do anything
else on the morning of 8/4/82, other than
wake up Mr. Christmas.
A. Yes. I was out on the job, Mr.
Fleming, the Supervisor, came to me and
asked me what happened. I told him, he
said that Tom was in the Camp Train and
that he wanted to go to the hospital,
that, he said that I hurt his back, so I
came in to the Camp Train, called Mr.
Spirk, and I talked to him.
Q. Mr. Smith, when Mr. Christmas
allegedly threatened you, did he have any
weapons.
A. Well, we had this trouble on
this Gang before, a Foreman was killed,
and with him being toxicated, I did not
know if he had anything in his pocket or
not. That is the reason I went down at
him.
Q. Mr. Smith, when you pushed Mr.
Christmas, did he fall to the ground.
A. No, Sir."
In his testimony, the Claimant denied that he had threatened the
Foreman, although he stated he did have a conversation with the Foreman
outside the camp car. As to
alleged intoxication,
the Claimant testified
that, "I had been out the night before, I had been drinking kindly [kinds]
heavy." Further, when taken to the hospital at his request in reference to a
possible back injury, the Claimant was found to have a blood alcohol content
level well in excess of the legal intoxication limit.
Award Number 25849 Page 3
Docket Number MW-25772
The Organization questions the propriety of a finding of guilt based
on the testimony of only one "witness" (here, the Foreman who directly
observed the Claimant). Discussion of this is rendered moot, however, by the
Claimant's own testimony as to "heavy" drinking prior to duty and the measure
of his blood alcohol level. Without regard to the alleged threat to "kill"
the Foreman, the resulting penalty of a 12-day suspension for intoxication is
mild, and there is no basis to question the Carrier's judgment.
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:
Nancy J. D Executive Secretary
Dated at Chicago, Illinois, this 13th day of January 1986.