PUBLIC LAW BOARD 1837
(MW-MUN-77-42)
Case No. 8
PARTIES TO DISPUTE: -
Brotherhood of Maintenance of Way Employees
vs
Norfolk and Western Railway Company
STATEMENT OF CLAIM:
1. The carrier violated the effective Agreement dated
February 1, 1951, by unfairly and for unwarranted reasons it dismissed the claimant D. L. Digman from service.
2. The claimant now be restored to service with seniority
and benefits unimpaired, and payment allowed for the assigned working hours actually lost, less any service in
the service of the company.
FINDINGS:
This Board upon the whole record and all the evidence
finds that:
The carrier and the employee involved in this dispute are respectively carrier and employee within the
meaning of
the Railway
Labor Act, as amended.
This Board bas jurisdintion over the dispute involved herein.
OPINION:
Claimant was classified as an "Extra Gang Laborer,"
but performing duties'as a Cook at the camp car when the in
cident for which he was removed occurred. He had been in ser
vice about 13 months when on April 6, 1977, at 12:15 p.m. he
was observed by a supervisor at a restaurant near the Camp
car location drinking a beer. According to the Carrier, this
in violation of Rule G which states:
flwd-
30 / dd
"The use
9
intoxicants or narcotic' by employees
subject to duty, or their possession or use while
'on duty, is prohibited."
The record suppacts the Carrier's contention that, when the
Claimant was confronted in this regard, his response centered
around 'his.belief that he was entitled to drink the beer since
his hours o£ duty were 8:00 a..m-. to 12:,00 noon and L:00 p.m.
to 5.:00 p.m. According to testimony of the Carrier supervisor,
the Uaiman t asserted he: had permission. Later that day,. when
's
confronlted by the Roadmaster, the Claimant failed to establish
any different basis for His. drinking the beer. According to
the record, the Claimant's immediate supervisor found a note even.
later that day from the. Claimant advising 'that he had taken
himself out of service at 10:00 a.m. due to. illness. A hearing
was held and, subsequent thereto, the Claimant's employment was
terminated.
We are persuaded that the. Claimant's silence as to his
purported illness when confronted by the observing supervisor
at the restaurant and, later. by the Roadmaster was. fatal to his
claim that he had already removed himself from service. Reason
opposes silence under such circumstances. We are also inclined
to give credence to the Carrier's rationale that an employee
who was unable to perform his duties would also be too ill to
visit a local restaurant and drink. beer. We support the
position that, while an employee may be at leisure during
_2_
A40cl.
So- /637
a scheduled work day, he owes the same responsibility to
adhere to Rules as when at work. Under the circumstances,
we find no basis to disturb the Carrier's action in this
Case.
AWARD:
Claim is denied.
F3. C. Edwards
Carrier Member
6%James F. Scearce
Neutral Member
William E. LaRue
Organization Member
on " / Z
1
1980