PUBLIC LAW BOARD N0. 3530



PARTIES TO DISPUTE . ..



              14PRFOLK AND WESTERN RAILWAY COMPANY

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STATEMENT OF CLAIM,

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    Claimant, W. L. Vaughan, P. 0. Box 201, Dinwiddie, VA 23841, was dismissed from work on July 23, 1987, for alleged violation of

    Rule G. Claim was filed by the Employes in accordance with ",.

    Railway Labor Act and agreement provisions. Employes request he . . . .'

    be reinstated with pay for all_lost time with seniority and ,,

    vacation rights unimpaired.


FINDINGS
    Claimant entered the Carrier's service in June, 1976.


By letter dated June 22, 1987, Claimant was notified to Uttend a formal investigation on charges that he violated Carrier's Rule G. The investigation was held on July 9, 1987. By letter dated July 23, 1987, Claimant was dismissed based on evidence adduced at the investigation which proved the charged offense.

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    The issue to be decided in this dispute is whether Claimant was


dismissed for just cause under the,Agreement; and if not, what should the -
 remedy be.

 Claimant was assigned to a gang near Ivor, Virginia. On the morning of June 22, 1987, Roadmaster R. P. Steele set out to discuss Claimant's recent absenteeism with him. On approaching Claimant and speaking with him, Steele noticed various signs of intoxication: Claimant's breath smelled of alcohol, his eyes were bloodshot, he avoided breathing at Steele, and he retreated upon Steelq;s approach...On querying Claimant as to whether he was drunk, Claimant stated that he could do his job, attempted to avoid breathing at Steele and refused a blood alcohol test. Claimant was, however, speaking and walking normally. After confirming observations with Assistant Roadmaster J. L. Lowe and again attempting unsuccessfully to have Claimant submit to a blood alcohol test, Steele took Claimant out of service

 citing a violatiop~'of,Aule G.

 Rule G provides the following,: "The use, of alcoholic beverages; intoxicants or narcotics by employes.subject to duty, or their possession or use while on duty or on Company property is prohibited."

 The position of the Organization is that the Carrier has not met its burden of proving the Rule G violation and thereby has dismissed Claimant without just cause. The Organization contends there.Ts a reasonable doubt as to whether Claimant was under the influence. It generally explains his , slow movement, his retreat from Steele and related behavior as his taking care to avoid a confrontation. Likewise, the Organization cites testimony at the investigation that Claimant was performing normally and effectively
 to prove that evidence of alcohol use was insufficient. The Organization also points out. that Claimant was never ordered to submit to a blood alcohol test. All'this indicates that'the conclusion that Claimant violated Rule G is mere speculation. The Organization challenges the discipline as an abuse

 of the Parrier's~'autbority.

 The position of the Carrier is that the evidence adduced at the investigation as to Claimant's behavior,.appearance and smell show conclusively that he 'was in violation of Rule G. Further, the Carrier maintains that Claimant's refusals to take a blood alcohol test prove his guilt by the adverse inference to. be drawn from that refusal. Finally, the. Carrier contends the discipline,applied to Claimant was not arbitrary or capricious but was fully warranted, citing its duty to protect the public and fellow employes and to maintain discipline and moiale.

 After review of the entire record, the Board finds that the more appropriate disposition of this matter is reinstatement without back pay.

 The Carrier has. established through substantial credible evidence in the record that Claimant behaved in a very suspicious manner, one that is. consistent with alcohol use. The Carrier has also shown that in light of its obligations to the public and employes to maintain a safe working environment and safe transportation system, the remedy of dismissal would be warranted by a Rule G violation. However, the evidence in the record indicates that dismissal is not the appropriate remedy.,
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The Board notes that Claimant will most likely be..required to submit to a return to work physical examination at which.time drug and/or alcohol tests might be performed. Claimant should avoid the use of alcohol and other prohibited substances and consider availing himself of the Carrier's
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Drug Alcohol Rehabilitation Service program if appropriate.

 AWARD
    Claim disposed of per Findings herein.


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                            Nicholas H. Zumas, eutral Member


                            'Carrier Member


                          C-Organ'zation Member


Date: ~~i/L' ~z, ` l B l.

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