AWARD N0. 78 CASE NO. 76 PARTIES TO DISPUTE:




STATEMENT OF CLAIM:





OPINION OF BOARD:
 On August 2, 1979 Claimants were Gangmen on Extra Gang 911 working at 96th Street and Highway 2 crossing. Each has a seniority date of October 21, 1978.
 During the noon hour the Gang traveled to Commerce City, Colorado to have lunch at Lydia's Cafe. Located downstairs in the same building is Noah's Bar. In the latter emporium Foreman B. T. Teal observed Claimants sitting at a table upon which there were two bottles of beer. He immediately removed them from service pending investigation. By letter dated August 3, 1979 Claimants were notified to attend a hearing to determine their responsibility in connection with an alleged violation of Rule G. Following an
 PLB - 2206, Awd. #78 2

 investigation on August 13, 1979 it was determined that Claimants violated Rule G when they were "observed drinking intoxicating beverage (sic) while on duty about 12:15 p. m.". By letter of September 10, 1979 Claimants were informed of disciplinary suspension effective August 3, 1979 through and including September 11, 1979.
 The hearing transcript reveals that Carrier has failed to meet its burden of proving by a preponderance of evidence that Claimants were guilty as charged. At no time did Foreman Teal or J. Longo, Carrier's second witness, observe Claimants drinking intoxicating beverage. There is no testimony from Carrier's witnesses that either Claimant smelled of alcohol or acted as if intoxicated. Further, Foreman Teal at no time sought further to verify his suspicions that Claimants had purchased and consumed alcoholic beverages by speaking with any of the waitresses or bartenders at the establishment.
 The fact that beer bottles were on the table occupied by Claimants does not alone prove that they violated Rule G. Carrier offers no additional . persuasive evidence that the bottles even belonged to them. P.L. Board No. 2406 in Award 12 (Kasher) addressed a similar issue as follows:

 In order for the discipline to be enforceable, the Carrier must show at least a preponderance of substantive evidence that the Claimant actually had possession of an alcoholic beverage. It is not enough to show that he was in the same room as a half-empty bottle of beer; or even that he was sitting at a table in front of a halfempty bottle of beer; or even that, sitting at the same table, was a fellow employee with a half-empty bottle of beer in his hand.





bevexaf~ i-P his pos5essL'o-vi, the Pxoject E~Q iweer Yespafydedt "4fo.
Theye. W=s half-e7qptx beer battt.esj twa of them, or? The tahJe Err the
 root. house.," Szbmitaxly,. the 6enelaG FoYeman tissponded to the some eqest~on with a swcciyict, "No £jY, id

 Posses-Sion of an alcoholic beVe!raJC 15 a seytou's offe7l3-, . h~tM6a4h there W3$ Stantf~aant ci~ausnstan=ial. evidence irr this cage, i.t,~n~st be de~norstrated by substan.tial evidence that an employee chayled with avi.
 offense did, ~n fact, have passe3Sion or' the beveYajet AamLttedLy -tke CLDL%1ant Was fawnd Em sespltioud Cixcum5Tanoes,- But .Sasplcion is
-I92t POSSGSS;LRI II«oydinIty, thm- GJalxrmust by SUSZatAed,











      Date: ~LGCG~7 gi ~~