PARTIES Brotherhood of Maintenance of Way Employes
 _TO and
 DISPUTE: Southern Pacific Transportation Co. (Western Lines)
 STATEMENT "1. That the Carrier violated the provisions -
 OF CLAIM: of the current Agreement when, in a letter
 dat.ed March 19, 1986, it dismissed Machine
 Operator A. C. Henry from its service on the
 basis of unproven charges, said action being
 excessive, unduly harsh and in abuse of
 discretion.
 2. Carrier shall now exonerate Mr. Henry of all
 charges and reinstate hilri to his former
 position with the Carrier with seniority and
 all other rights restored unimpair°ed and
 compensated for all wage loss suffered."
 FINDINGS
 Upon the whole record, after hearing, the Board finds that thF
 par-ties herein are Carrier and Employees within the meaning of the
 Railway Labor Act, as amended, and that this Board is dU1y
 constituted under Public Law 89-456 and has jurisdiction of the
 parties and the subject matter.

Claimant, a Machine Operator, had been employed by Carrier in 1978. On February 10, 1986, he was notified to be present fur· a formal hea, ing with respect to his allegedly being under th

influence of alcoholic beverages, while on duty on February 6. 1986, and possible violation, therefore, of Carrier's Rule G The hearing was held on February 21, 1986 arid, subsequently, by lette,

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2 dated March 19, Claimant was notified that Carrier, found hirr:


guilty of the charges and that he was dismissed from service.

Petitioner, argues that Claimant had failed to support its conclusions with significant evidence. In fact, the Organization argues that Carrier based its entire case on, suspicions of untrained persons rather than hard evidence of-,the fact alleged in the charge. It is concluded that there was no real evidence that Claimant was under the influence of alcohol on the morning in question. In particulo:-, his testimony indicated that, although he had been drinking beer that night, he had no liquor or alcohc' prior to coming to work at 8:00 o'clock in the morning but he wa=. wearing clothes, which fie had worn the previous night, when he had been drinking beer. Furthermore, he had not had time to brush his teeth or change his clothes that morning. Thus, he explains he might very well have smelled of beer' but was nor. under thF ::ifluence at that rime. The Or_ganizationno.tes that he was :-.vt required to have a urinalysis to establish the fact of his alleged being unde., the influence. In addition, the. Organization relies on the testirriony of at least one witness _to the fact that Clairr:ant did not appear, to be abnormal in any fashion.


Carrier's conclusions were. based on testimony, at the hearing, in which a Lead Machine Operator and his Supervisor both observed that Claimant appeared to smell of beer or alcohol and was acting


in a somewhat unusual manner. Both expressed the opinionthat
                                                  ~~13C - 1~-S


3 Claimant was under the influence .of alcohol on the morning of February 6. Furthermore, according to Carrier, Claimant had beer given the opportunity to provide a urine sample for testing but .had stated that he would rather not undergo such testing, unless required, because he probably couldn't pass. He agreed that he had been drinking beee the night before, according to Carrier

Furthermore, Carrier insists that laymen are perfectly capable of making decisions and determinations, with respect to employees being under the- influence of alcohol, and that this is well recognized in this industry.


As the Board views it, Carrier had the right to make the determination that Claimant was under the influence of alcohol or, the day it, question. The testimony of the two witnesses, cited by


Carrier, was credit=d by the Hearing Officer and this Board cannot -
 overrule that credibility finding. Furthermore, it is perfectly
 well accepted that laymen are corripetant to testify as to outward
 manifestations which lead to the cor,clu_ ion of being under the
 influence of intoxicants (for example, Third Division Award
 19977). It is this Sqard's view, however, that the testimony with
 respect to his intoxication, was, at best, slim although sufficient
 for, Carrier's conclusion. Furthermore, it would appear to this
 Board that Carrier's conclusion,- based on the odor of beer.-th_:
 Claimant be tErminated, appears to be a-harsh and unnecessary,
 penalty. It is this Board's conclusion that Claimant should be
 restored to service, subject to passing a return-to-work physical
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examination, but that his period out of service shall be considered

 to have been a disciplinary lay-off. -

 AWARD
      1. Claim sustained in part; Claimant shall be returned to

          service -subject to passing -a return-to-work physical -

          examination with all rights restored unimpaired.


          2. Claimant's period out of service due to the conclusicrr, reached by Carrier shall be considered to have been--a-

          disciplinary lay-off;-he shall not be compensated for -

          time out of service.


ORDER
      C.=rrriar--will comply with the Award herein within 30 days from

      the date hereof. -


                -------------------

                I. M. Lieberman, Neutral-Chairman


. J. S art, Carrier Member C. F. Foose,- Employee Member -

 San Francisco, California Sept ember^ ' r, 1988