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NATIONAL RAILROAD PASSENGER CORPORATION(AMTRAR)
                                              *


                  -and-

                                              * CASE NO. 12


* AWARD NO. 12 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
                                              *


Public Law Board No. 2406 was established pursuant to the provisions of Section 3, Second (Public Law 89-456) of the Railway Labor Act and the applicable rules of the National Mediation Board.
 The parties, the National Railroad Passenger Corporation (Amtrak, hereinafter the Carrier) and the Brotherhood of Maintenance of Way Employes(hereinafter the Organization), are duly constituted carrier and labor organization representatives as those terns are defined in Sections L and 3 of the Railway Labor Act.
 After hearing and upon the record, this Board finds that it has jurisdiction to resolve the following claim:

              "The Carrier violated the effective agreement, dated May 19, 1976, on January 30, 1980, by unfairly, improperly and without just cause, dismissing Claimant Arthur B. Berger and subsequently.reducing the dismissal to sixty (60) days suspension.


              The sixty (60) days suspension shall be removed from the Claimant's record and he be compensated for the time held out of service."


    On January 6, 1980 the Claimant was assigned as a Trackman on

    the Carrier's Philadelphia Division. The Claimant was called to

    perform emergency snow duty at Shore Interlocking, located in North

    east Philadelphia, and he arrived at the Tool House located at Shore

                                                      j


                                              P.L.Bd. No. 2·406

                                              Case/Award No. 12


                                              Page Two


to commence his assignment at approximately 12:05 a.m. on January 6, 1980. At approximately 12:35 a.m., on January 6, 1980,-the General Foreman and the Project Engineer arrived at Shore Interlocking to inspect the condition of switches. Not seeing the track gang that had been called and assigned to snow duty, the two officials attempted to enter the tool house and found it locked. The Project Engineer knocked on the door and the Claimant unlocked and opened it after several minutes. The Claimant and two other employees were inside the tool hous The two officials entered the tool house and observed two half empty bottles of beer on a table and a-third in the hand of an emalovee. After opening the door, the Claimant sat down in a lawn chair beside the table.

 At approximately 2:30 a.m..January 6, 1980, the Claimant was notified in writing that he was being withheld from service. By letter dated January 9, 1980 the-Claimant was notified to attend a trial on January 15, 1980, to determine his responsibility in connection with an alleged violation of Rule C, which reads in pertinent part as follows:

            "C. Reporting for work under the influence

            of alcoholic beverages ... or the use of alcoholic

            beverages while on or subject to duty or on Company

            property is prohibited."


The trial was held as scheduled and the Claimant was dismissed from service for possession of alcoholic beverages while on duty. The Claimant appealed and the discipline was later reduced to a sixty (60) day suspension. The Claimant's appeal of the modified discipline is now before this Board.
                                            P.L.Bd. No. 2406

                                            · Case/Award No. 12 Page Three


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; oreven that, sitting at the same table, was a fellow employee with a half-empty bottle of beer in his hand.

      When asked if he had observed the Claimant with an alcoholic

beverage in his possession, the Project Engineer responded, "No.
 There was half-empty beer bottles, two of them, on the table in the
 tool house." Similarly; the General Foreman responded to the same
 question with a succinct, "No sir."

 Possession of an alcoholic beverage is a serious offense. Although
 there was significant circumstantial evidence in this case, it must be
 demonstrated by substantial evidence that an employee charged.with the
 offense did, in fact, have possession of the beverage. Admittedly,
 the Claimant was found in susaicious circumstances. But suspicion is
 not possession. Accordingly, the claim must be sustained.

      AWARD:

            Claim sustained.


R. Radke, Carrier Member W. E. LaRue, Organization Member

            Richard R. Rasher, Chairman and Neutral Member


Auguat 31, Z98~.