AWARDS 86 - EMPLOYEE REFUSES DIRECT ORDER TO GIVE BREATH TEST

Second Division Award No. 12091 (Zusman)

"The record before this Board indicates that the Senior General Foreman detected alcohol when three employees assigned to work the second shift arrived at work. He approached the first two and detected no odor. He approached the Claimant and detecting the smell of alcohol confronted him. The Claimant indicated he had not been drinking. The Senior General Foreman requested to smell his breath. Claimant refused stating he was leaving to have a blood test.

"The incident that followed clearly demonstrates that Claimant was ordered to give a breath test and refused the order. The Senior General Foreman testified that Claimant thereafter asked to be marked off and when permission was not granted, argued he was sick. After further conversation, the Claimant indicated he would not remain and the testimony thereafter differs between the Claimant and the supervisor.

"We have studied the conflicting testimony is this record. On important points underlying the charges of Rule G and insubordination, in that Claimant left his assignment against direct instructions, there is no major inconsistency. The General Foreman was a second witness who also detected alcohol. He also confirmed the fact that Claimant was given a direct order not to leave and said `he was leaving anyway.'

"Claimant's testimony confirms that he refused a direct order from the Senior General Foreman. The Board does not find the request unjustified. The Carrier has an absolute responsibility to maintain a drug free workplace. Having detected alcohol, it would have been totally irresponsible not to have investigated further. Carrier's request for the smell of Claimant's breath has long been upheld as probative evidence of a Rule G violation. While there was no other evidence of Claimant's consumption, his refusal raises serious questions. The smell of breath standing alone can provide substantial evidence supporting the charge if, as here, it is confirmed by two clear witnesses and the simple breath test is refused. That test would have determined whether the smell was on the Claimant's clothes or evidenced drinking. In this case, the evidence substantiates guilt.

"The evidence that Claimant was dismissed prior to a preliminary investigation is conflicting. The Senior General Foreman testified `If you leave, I will fire you.' The Claimant states he was fired immediately. Credibility decisions do not lie with this Board. The fact is that the evidence substantiates Carrier's position and there is insufficient probative evidence to the contrary. The Claimant was not dismissed until March 15, 1989 after the preliminary investigation. The Board finds no violation of Rule 34 (a).

"Therefore, this Board finds that the Carrier's determination of guilt was fully justified. The discipline of dismissal will not be disturbed. There are no mitigating circumstances which would justify the finding that the penalty was harsh. The Claim is denied."