Page 2 his work record.
The circumstances surrounding the incident are unusual. At approximately 0300 on the 4" of July, claimant was found unconscious in his company truck with the motor running, the transmission in Drive, and his foot on the brake at the traffic light controlled intersection of Assembly and Rosewood Streets in Cayce, South Carolina. Two highway patrol troopers were unable to arouse him and summoned paramedics in case a medical incident, such as suspected diabetic reaction, caused his failure to respond to tapping on the truck windows. He eventually responded and was cleared of any medical reason for his status. The troopers detected the odor of alcohol and arrested him for DUI. Claimant was transported to police headquarters for breath alcohol testing. His company truck was impounded and towed from the scene.
According to the written report of a Carrier special agent who spoke with the arresting officers after the fact, claimant was uncooperative during the testing; he kept biting the end of the mouthpiece. After three attempts to obtain a breath alcohol reading, the police declared him to have been a test refusal. The attempts at testing were video taped to show what transpired during the testing process.
Claimants brother, who was also a Carrier employee, paid by credit card to have the truck released from impound and drove it to the Carrier's headquarters. According to the Carrier's testimony, the truck was missing in the morning and was found present later that afternoon.
According to claimant's testimony, he worked long hours on July 2 and 3, 2007 as employeein-charge of a gang performing curve resurfacing. The long hours are undisputed. He started work at approximately 0530 on the morning of July 3 and did not finish until 2200. Rather than return his company truck to the work headquarters immediately thereafter, he decided to take a nap at the home of his nearby in-laws before returning the truck and driving home in his personal vehicle. His home was more than one hour away. He thought he napped for a couple of hours before waking and trying to return the truck. He did not pay attention to the tine. He admits he must have fallen asleep while stopped for the traffic light on his way to headquarters.
To be at his in-laws by 2230 and then be found at the intersection at approximately 0300, claimant would have had to have napped for approximately four hours.
Claimant's testimony coincides with much of the written report of the Carrier's Special Agent. However. it does conflict in several significant respects. For example, claimant denies consuming any alcohol. He claims the troopers decided to arrest him for DUI because of the circumstances in which they discovered him. For another example, he denied having three test attempts. He claims the trooper stopped after two failed attempts and was not going to fool with him any more before declaring him to be a test refusal. Claimant vigorously maintained several times that the video tape of the testing process would corroborate his contentions about the number of test Public Law Board No. 7104 Award No.C.
Page 3 attempts and how he was treated. Claimant also denied making any untoward remarks to the arresting officer or being belligerent during the arrest or testing process. He denied biting off the end of the test mouthpiece.
The video tape was never produced by claimant at the investigation or at any time during the appeal process on the property. Claimant's criminal trial on the DUI charge remained pending during the development of the instant record. As a defendant in the criminal DUI proceeding, claimant should have had access to it. Prosecutorial evidence cannot be withheld from an accused person. In addition, except as noted previously, claimant's testimony corroborated virtually all other details contained in the report of the Carrier's Special Agent. Except for claimant's conflicting testimony, the Special Agent's report is not in conflict with any of the other extrinsic evidence in the record. Finally, that report was properly included in the record and was entitled to full consideration.
We have carefully reviewed the record in this dispute and find that it does contain substantial evidence upon which the Carrier could have made the determination it did except in one part. The record does not establish that claimant was engaged in unauthorized personal use of a company vehicle during the incident in question. However, that part is the least serious of the charges.
Considering the nature of the misconduct determined by the Carrier, we do not find that the Carrier's disciplinary decision was unreasonable or otherwise improper. The claim, therefore, must be denied.
