NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD N0. 24
Case No. 26
STATEMENT OF CLAIM
1. The Carrier violated. the provisions of
the current Agreement when it dismissed Mr.
S.W.
0'Neal without first.according Claimant a fair
and impartial investigation. Said action being
excessive and in abuse of discretion.
2. The Carrier shall now be required to
reinstate Claimant to his--former position with
seniority and all other rights restored
unimpaired and with compensation for all wage loss
suffered during the intervening period.
F I N D I N G S
The Claimant completed his regular work schedule at.
4 p.m. on June 5, 1988. He was called at home at'around 11
p.m. to return to duty to assist with-a derailmentand
resulting track damage.- He reported as directed. During
t
the course of- his work, he was observed by his Foreman to-' -_
be acting in a boisterous and "hyperactive"
manner. When
PLB No. 4370
Award No. 24
Page 2
questioning the Claimant, the Foreman noted the odor of
alcohol on his breath. This was confirmed by the Train- -
master and a Special Agent, who were called to
the scene
.
The Claimant consented- to a urine test, which he under
went immediately thereafter. The result of the test showed -
that the Claimant had consumed a "substantial" amount of
alLohol, apparently prior to reporting for duty. The Claim
ant admitted that he had consumed "a few beers ear-.ier in
the day".
Following this incident, the Claimant was subject to
an investigative--hearing under the following
charges:
. . . your responsibility, if any, in
connection with your alleged violation of Rule
"G" when reporting for duty at North Yard on
or about 2300 Hours, June 5, 1989; and for your
al-leged insubordination by your alleged failure
to -comply with instructions from proper authority
by departing North Yard Terminal Office Building
after having been instructed by proper authority
to remain there for further instructions at about
0430 Hours, June, 1989.
Upon completion of the investigation the Claimant was
found guilty of the charges and dismissed from service.
The reference to the Claimant's alleged insubordination
concerned his fai.lureto remain in the-Trainmaster's office
after returning from the urine test. In theTrainmaster's
momentary absence, the Claimant apparently left and went
home. By thistime, however, he had already been informed
PLB No. 4370
Award No. 24
Page 3
that he was removed from service. The Board does not give
great weight to the insubordination charge.
The evidence does show, however, that the Claimant
reported for duty while under the influence of alcohol, as
confirmed by the urine test. This is a clear-violation of
Rule "G". Absent other considerations, some allowance might
be made for the fact that the Claimant was called to work
outside his regular schedule. Nevertheless, it was his responsibility to decline such call, given the admitted fact that
he had been drinking. Mitigation-of-the penalty
is
not warranted, however, in view of the Claimant's previous disciplinary
record. This includes -a previous dismissal for safety rule
violation and reinstatement on a leniency basis, as well as
two earlier -disciplinary suspensions. In view-of this, the
resulting dismissal in this instance was not inappropriate.
A -W A R D
Claim denied.
of
HERBERT L. MARX, JR., Neutral Referee
NEW YORK, N.Y.
DATED: July 1, 1991