Special Board of Adjustment No. 956-
PARTIES Brotherhood of Maintenance of Way Employes
TO
DISPUTE: and
New Jersey Transit Rail Operations, Inc.
STATEMENT The dismissal of B & B Mechanic J. Toomey was harsh
OF
CLAIM: and excessive and he shall be reinstated without
loss of seniority rights, vacation rights or other
benefits.
FINDINGS: While on duty on August 15, 1985, claimant left the
work site, entered a liquor store and purchased
beer several times. There is credible evidence
that he proceeded, still during his shift, to drink
a large quantity of beer and to become intoxicated.
Claimant does not deny consumifg beer on the property
during his working hours that day. The assigned
duties were not completed during that tour of duty;
claimant did not work beyond 10 a.m. of his 8 a.m.
to 4:30 p.m. shift.
According to the testimony of a co-worker as well
as of a mechanic who had been directed by the foreman to bring
claimant and the co-worker back to headquarters by automobile,
claimant was intoxicated and in~no condition to work. Claimant
was held out of service pending investigation.
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A hearing was scheduled in the matter for August 26,
1985, but was postponed at the General Chairman's request on the
ground that claimant was entering a clinical facility for treatment. By letter of September 24, 1985, Dr. Steven Cohen, the
Clinical Director, reported that claimant was under his care in
the Adapt Program, was showing a great deal c;f motivation but
"will not be able to return to work
at this time because of his severe
depression... serious enough to cause
him to be presently disabled ...Mr.
Toomey will be entering into a longterm treatment, program ...He will
also be continuing in therapy with
me. Our plans are to have Mr. Toomey
return to work at a later date once
he is able to function..."
Hearing finally was held on May 7, 1986. On May 20,
1986, claimant was dismissed from Carrier's service on the basis
of his actions on August 15, 1985.
In Petitioner's view, the discipline is unfair and
excessive and should be set aside. It contends that Carrier has
not given consideration to the time and effort claimant expended
to cure his illness. It reasons that Carrier properly should seek
to salvage claimant and not to injure him. Contrary to Petitioner's additional arguments, we find no reversible'procedural error
on Carrier's part.
Alcoholism is an illness that should be treated
with consideration. That is not to say, however, that an employer
may properly be compelled to retain an employee, unfortunately
sick though he may be, when he cannot be relied on for steady and
competent service.
A difficulty in the present case is that there is
qsc~ - as
no evidence that claimant is in a position to give Carrier a fair -
day's work. At this point in our history, there is no realistic
basis for requiring Carrier to keep claimant on-its payroll for a
long indefinite period of time, much as we may all,have a feeling
of compassion for claimant and respect for his good record of nine
years service.
Petitioner is quite wrong in its assertion that Carrier did not show claimant consideration in this case. The record
indicates that Carrier was extremely patient in the matter. On
the other hand, Petitioner's plea is certainly sincere and impressive.
On the basis of all aspects of the situation, we are
of the opinion that claimant should be reinstated with seniority
unimpaired and without back pay provided that an Employee Assistance
Program counselor represents that claimant has for a period of sixty
days abstained from the use of alcohol and followed the recommendations of that Program, including membership and regular participation in AAA or a substantially equivalent program authorized by
the E.A.P.
We recognize that a sixty-day 15eribd may not be considered adequate by many but, in view of the economic realities
confronting claimant
and the time he spent under Dr. Cohen's supervision, we have decided that a sixty-day period is not unreasonable.
The claim will be denied if the counselor referred
to above does not make such a representation within six months
after the effective date of this Award.
AWARD:
Carrier Member
q'SG_ P-a
Claim disposed of in accordance with the final two
paragraphs of the above Findings. To be effective
within 30 days.
Adopted at Newark, N.J. /~ 1987
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FIa o~Td M. Weston, Chairman
Employee Member