PUBLIC LAW HOARD NQ, 62 84
Brotherhood of Locomotive Engineers
AWARD NO. 11
-and- CASE NO. 11
Burlington Northern-Santa Fe Railway
STATEMENT OF
Claim that Engineer Stiffarm be reinstated
immediately with seniority unimpaired, paid for
all time lost and that the notation relative to
this incident be removed from his personal
record.
This Public Law Board No. 6284 finds that the parties herein are Carrier
and Employee, within the meaning of the Railway Labor Act, as amended, and that
this Board has jurisdiction.
By letter dated June 4, 1999, the Claimant, Engineer J.P. Stiffarm, was
notified that he was dismissed from service for violation of Rule 1.5 as
follows:
This letter will confirm that as a result of
formal investigation on May 28, 1999, concerning your violation of Rule 1.5 of the General
Code of Operating Rules while on company property at approximately 0150 hours, Thursday,
May 20, 1999 you are
dismissed
from employment
for violation of Rule 1.5 of the General Code
of Operating Rules.
Please arrange to return all Company property
and any Amtrak transportation passes in your
possession. A check will be issued far any
moneys due you.
This letter will be placed in your personal file.
Your signing below serves as receipt of this
. dismissal. Your personal record was taken into
consideration is assessing this discipline.
Respectfully,
s/W.C. Stuhldreher
Terminal Manager
t_... N Z~ . ~..' - 2 -
The discipline was appealed by the organization and the matter
is now
properly before this Board for adjudication.
The Carrier has not met its burden of proof by substantial evidence of
record that Mr. Stiffarm
was in
violation of Rule 1.5 while on company property
at approximately 0150 hours on May 20, 1999_ The testimony of the
BNSF
police
officer involved in the matter does not amount to substantial evidence of
record. He testified in part as follows
having had
a city police officer stop
the Claimant after the Claimant had cut across a
BNSF
access road for a
distance of 100 to 200 yards .
... I approached the vehicle to begin with because I had the patrolman stop him. Talked to
_ the subject, I asked him if he was aware that
he was driving on
BNSF
property, and by doing
so it was criminal trespass. The subject
stated at the time, "I was just trying to get
home." I said, "Well, what were you doing on
the property?" Again, "I was just trying to
get home." Well after, when he said that, I
could smell.alcohol on his breath, so I turned
to the police officer and said, "I think this .
guv!s been drinking", and so he took over from
there. I got Mr. Stiffarm's receipt of a
duplicate license from him, and I walked back
to my patrol vehicle to run the license through
the local dispatcher to see if it was valid.
And while I was doing so, I observed the police
officer take Mr. Stiffaxm over to the sidewalk
and do, ask him to do field sobrietv maneuvers.
pointer as I was in the patrol vehicle. But
after I ran the license for validity, I came
back to where they were
standing, and
the
patrol officer was asking Mr. Stiffarm some
questions. Then he was placed under arrest by
the police officer and put into the back of
his patrol car. (emphasis added)
The Carrier did not produce the city police officer as a witness. Surely up to
the point described above by the BNSF officer the Carrier.has not met its
burden of proof where its police officer turned over the entire field sobriety
test of the Claimant to a city police officer on city jurisdiction and went
back to his own vehicle to run the
license.
Later Mr. Stiffarm authorized the
BNSF police officer to park and lock his vehicle. The police officer observed
a plastic Bud Light cup
on
the seat filled with ice tipped over on its side and
r
he testified that it, "smelled like there was alcohol."
I
He stated:
... Without the proper tests I can't prove that
it was alcohol, but it had the smell of an
alcohol based substance in the cup . ...
No "proper tests" were submitted as evidence to this Board. We do not know what
happened to the cup in the record before this Board. And, the DUI case against
the Claimant was dismissed by the appropriate court. The deputy city attorney
filed a motion to dismiss the action against Mr. Stiffarm "... in the interest
of justice, as the investigating officer did not have a particularized
suspicion to arrest Defendant for DUI," and a city court judge dismissed the
case against Mr. Stiffarm on August 11, 1999.
Mere possession of alcohol by an employee on company property even for 30
seconds to a minute while traversing a company access road is a Rule 1.5 GCOR
violation. The dangers inherent in the industry.and the need to protect
employees, the public and private and public property, demand such. a zero
tolerance rule. And such a rule is strictly enforced by boards of arbitration.
But that does not mean that a public law board will relieve a Carrier of its
burden to prove a Rule 1.5 violation by substantial evidence of record when the
Carrier's police officer defers to a city to prosecute or it fails to properly
develop a case. The Carrier did not make out a proper case at the formal
investigation on May 28, 1999. The criminal case was dismissed. We have no
alternative but to sustain this claim.
AWARD
Sustained.
The Carrier is required to comply with this
award within thirty days.
Employee Member
Dated:
I ~Z_
W--, /, ~
Chaff and Neutral M~ber