NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6423
John C. Fletcher, Chairman & Neutral Member
Kendall F. Koff, Carrier Member
Dale L. McPherson, Employee Member
Public Law Board No. 6423, upon the whole record and all of the evidence, finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute(s) herein.
The circumstances culminating in the case at bar were addressed in prior Award 4 of this Board, which supported Carrier's dismissal of Assistant Engineer J. R. Fitzgerald for violating General Operating Rule 1.5. They are briefly summarized herein below.
The Claimant in this case was assigned as an engineer in road pool service between Mason City, Iowa and Marquette, Iowa. On August 29, 2000, he was called for Train No. 386, and departed Mason City with Assistant Engineer J. R. Fitzgerald at 0800 hours. The record establishes that Claimant was required to stop at Ossian, Iowa at 1045 hours to wait for an Engineering Department crew to release the track ahead of him. According to facts not in dispute, Claimant took that opportunity to visit the rest room in the nose of the lead engine, while Assistant Engineer Fitzgerald opted for a beer break. Unfortunately for him, Train 386 stopped only fourteen (14) feet away from a home located next to the track in Ossian, and through her laundry room window, the resident of that home observed his actions. .A.Irer notifying the local sheriff that a railroad crew member was drinking on the job, she contacted Carrier's main office in Davenport and reported her observations there. However, before Carrier could respond, Train 386 departed Ossian, and Claimant and Assistant Engineer Fitzgerald were not intercepted until they arrived in Marquette. Both were subsequently subjected to reasonable cause alcohol breath tests, the results of which were negative for Claimant and positive for Assistant Engineer Fitzgerald. Nevertheless, Claimant was removed from service and directed to attend a formal investigation in connection with the following charge:
An evidentiary hearing into the matter was held on September 19, 2000, during which Claimant unequivocally denied being aware that Assistant Engineer Fitzgerald either possessed or consumed alcohol during their trip on August 29, 2000. Carrier nevertheless dismissed him on October 3, 2000 for his "involvement" in the incident, and in due course, the instant claim for his reinstatement was presented. As the matter could not be resolved on the property, it was submitted to the Board for disposition.
Carrier argues that Claimant, as engineer of Train 386 on August 29, 2000, was responsible for assuring that "his subordinate" complied with all operating and safety rules. Carrier rejects the Organization's argument that Claimant was dismissed without sufficient cause on the "assumption" that he was aware of Assistant Engineer Fitzgerald's drinking. On this point, Carrier argues that he must have known, because extrapolated breath alcohol test results revealed that Fitzgerald's alcohol consumption likely exceeded the one beer he admitted drinking. Moreover, Carrier maintains that, "[I]n the unlikely event [Claimant] was truly oblivious to what was happening in the confined space of the locomotive, he is still culpable for not knowing" (Carrier submission at page 2, emphasis added).
Carrier further accuses Claimant of "evasiveness, detachment and indifference" during the evidentiary hearing, and maintains that he hid "what the physical evidence gathered later showed - that Fitzgerald was drinking throughout the trip" (Carrier submission at pages 6 and 7). On that basis, Carrier urges the Board to find Claimant responsible as charged and support its sanction of permanent dismissal.
The Organization argues that Carrier dismissed Claimant without just cause on its assumption that he knew Assistant Engineer Fitzgerald drank alcohol while on duty and failed to report it. On this point, the Organization cites Fitzgerald's testimony that he
drank the beer outside Claimant's presence, and concludes that Claimant therefore had no way of knowing about it. The Organization also argues that Claimant's failure to observe behavioral manifestations of Fitzgerald's drinking was not caused by "indifference", noting that Carrier officers even testified of his normal conduct both before and after reasonable cause testing. The Organization further cites Claimant's "exemplary" 40-year career in the industry, and for all the foregoing reasons, urges the Board to sustain the instant claim in its entirety.
Upon the whole of the record, the Board is convinced that Carrier acted against Claimant without sufficient evidence of his culpability in the bizarre events of August 29, 2000. The record is totally absent any material revelation that he was, in fact, aware that Assistant Engineer Fitzgerald drank on the job and moreover chose to suppress that information. Here, the Board reminds Carrier of its contractual burden as the moving party in this case, and points out that the affirmative argument it raised on this point lacked support of hard evidence necessan for it to prevail. In other words, Carrier's mere conclusion (and consequent assertion) that Claimant must have known about Fitzgerald's drinking because it made sense, did not make it so. Carrier does cite forensic evidence indicating that Fitzgerald's breath alcohol level at the time he was tested allowed for the reasonable conclusion that he either drank more than the one beer he admitted consuming on his trip, or was "falling down drunk" when he came to work. Either way, according to Carrier, Claimant therefore must have known he was drinking, but the Board does not agree.
The Board is first persuaded by the fact that Fitzgerald testified to drinking at Ossian outside Claimant's presence. Furthermore, even Carrier officers observed Fitzgerald conducting himself in an entirely normal manner upon his arrival in Marquette. Therefore, the Board is not convinced that Claimant had any behavioral manifestation of Fitzgerald's infraction to observe. Carrier's determination that Claimant must also have observed the act of Fitzgerald's drinking does not meet the Board's standard of burden either. Surely Carrier has considered the possibility that if Fitzgerald indeed continued to drink after the incident at Ossian, he may not have been so bold as to pop open a beer right in front of Claimant, choosing instead to "spike" his thermos or replace bottled water with clear alcohol. The Board readily concedes that this, too, represents nothing more than pure conjecture. However, the illustration serves to show Carrier that something altogether different from its :.^ae-pretation of events could, in fact, have happened.
The Board holds Carrier to its contractual obligation to prove that Claimant knew of Assistant Engineer Fitzgerald's violation of Rule 1.5, and then deliberately concealed it. The record before the Board simply contains no evidence of such an act. The Board concludes, therefore, that because Claimant was dismissed on what amounted to speculation of guilt, as opposed to material evidence of guilt, the claim must be, and is, sustained in its entirety. Carrier is ordered to immediately reinstate Claimant to service