SPECIAL. BOARD OF ADJUSTMENT N0. 986
Case No. 1
Docket No. NBC-BMWH-SD-1243D
PARTIES: Brotherhood of Maintenance of Way Employees
TO
DISPUTE: Amtrak
FINDINGS:
On February 28, 1985, Claimant R. Adams received notice
that he was being held out of service for allegedly appearing to be
under the influencp of alcohol while having a conversation with his
supervisor. on March 8, 1985, Claimant was notified to appear for
trial in connection with the following charge:
Violation of NRPC Rules of Conduct Rule "C,"
that part of which reads . . . " . . . use of
alcoholic bevirrages while on or subject to duty
. . . is prohibited."
Violation of Amtrak Maintenance of Way Employees
Safety Rules and Instructions Rule 4002, that.
part which reads . . . " · . alcoholic
beverage must. not be used by . . . any employee
while on duty or within 8 hours before. reporting
for duty."
SQ?cificatinn: In that on Thursday, February
2R, .l9B5, at approxim:,tely 7 p.m. whiLr having a
conversation with SSupervi:;or Wayne Wi:szka, you
appeared to h~. under the influence of alcohol.
An investigation was held on March 14, 1985. As a result of
that hearing, Claimant was assessed a discipline of a 15-day
suspension. The Organization appealed the finding.
The organization contends that. there was insufficient
evidence in the record to support the finding that the Claimant was
guilty of the offense with which he was charged. The Organization
points out that the Claimant even offered to take a blood test to
prove his innocence, and such an action is not that of a guilty party.
The Carrier contends that it has met the required burden of
proof in that each Carrier witness proffered clear and concise
testimony that there was an odor of alcohol on the Claimant's breath
and that the Claimant acted loud and boisterous. The Carrier contends
that the Claimant was not given a blood test because of the
unavailability of a medical facility at the late hour of the incident.
This Board has reviewed the evidence and testimony in this
case, and we find that there is not sufficient evidence in the record
to sustain the hearing officer's finding of guilty of the offenses
with which the Claimant was charged.
First of. all, there is absolutely no evidence that the
Claimant used alcoholic beverages while on duty or subject to duty;
and, therefore, the Carrier has obviously not met its burden of proof
with respect to Conduct Rule "C."
With respect to the charge relating to use within eight
hours prior to reporting for duty, i.e., Rule 4002, this Board also
finds that there is insufficient evidence to support any finding that
the Claimant violated that rule. The only testimony presented by the
Carrier relating to the alleged alcohol use was the testimony of the
three Carrier witnesses that Claimant's breath smelled like alcohol
and that he was acting loud and boisterous. However, the facts are
unrebutted that Claimant was speaking to the management
representatives concPrninq what. he considered to be a shortage in his
paycheck. That adequately explains his behavior that was less than
calm. Moreover, the testimony regarding the smell of alcohol was
insufficient. One witness even volunteered that he was not an expert
and he might be wronq. Also, there was no testimony that the
g86-i
Claimant exhibited any of the other behavioral characteristics of
drunkenness, such as slurred speech, bloodshot eyes, or unsteady gait.
Finally, the Claimant offered to take a blood test to demonstrate that
he was not under the influence and went voluntarily to the hospital to
i
take the test. That hardly is the action of a man who is guilty of
the offense of being under the influence of alcohol.
Since the Carrier bears the burden of proof and there is
insufficient evidence of wrongdoing, the claim must be sustained.
AWARD:
Claim susrt.ained_~_
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Chairman,' Neutral Member
Carrier M Amber n,,jc,n Ftrm!m·r
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Date: ~~ ! ~J '~.
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