Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43891 Docket No. SG-45386 20-3-NRAB-00003-190123

The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

“Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railway Company:

Claim on behalf of E.A. du'Monceaux, for reinstatement to service with compensation for all time lost, including overtime pay, with all rights and benefits unimpaired, and with any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 54, when it issued the harsh and excessive discipline of dismissal against the Claimant, without providing a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on September 27, 2017. Carrier's File No. 35-17-0044. General Chairman's File No. 17-069-BNSF-154-TC. BRS File Case No. 15959BNSF. NMB Code No. 173.”

FINDINGS:

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

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

The Organization maintains the Carrier committed a grave procedural violation during the investigation phase of this case when the hearing officer conferred with the Carrier’s keywitness, Supervisor Signals Jonathan Warlof,before taking his testimony. (TR 17, 42) The transcript of investigation shows that the Organization objected and offered a photograph of the hearing officer speaking with Warlof prior to the start of the investigation. The Board agrees that this conduct was improper. The question therefore becomes whether it was prejudicial to the Claimant’s case.

TheCarrierprovidedacopy ofthereceiptforthelunchinquestionwhichclearly showed that a Sierra Nevada beer was ordered. The Organization provided statements from restaurant servers stating that it is very easy to make the mistake of putting a Sierra Nevadaon thetabwhena Sierra Mistwas ordered.We are not persuaded by this argument; itwould require pure suppositionthat the server made a mistake when there is nothing to support that conclusion.

The receipt is not the only evidence of the Claimant’s drinking on duty. His statement is provided below:

The Claimant’s question “Is there a problem with that” belies any notion that by “drink” he was referring to a non-alcoholic drink. There would be no reason for him to suspect a problem had he been drinking Sprite. This admission, coupled with the receipt, is sufficient to constitute substantial, if not convincing, evidence of a violation of the Carrier’s Policy regarding drugs and alcohol. The Carrier has met its burden of proof without the need for testimony from Warlof, hence the Claimant has not been prejudiced by any discussion between Warlof and the hearing officer before the investigation began.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 28th day of January 2020.