Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7234
SECOND DIVISION Docket No.
7097
2-C&NW-CM-'77
The Second Division consisted of the regular members and in
addition Referee C . Robert Roadley when award was rendered.
( System Federation No.
76,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Freight Car Inspector Frank Ligety was unjustly suspended from
service on May
12, 1975.
2. Freight Car Inspector Frank Ligety was erroneously charged with
being in violation of Rule G of the General Regulations and
Safety Rules.
3.
That the Chicago and North Western Transportation Compan- be
ordered to reinstate Mr. Ligety for all time lost at eight hours
per day, with seniority unimpaired, plus any other benefits he
would be entitled to as per Rule
35.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes in'7elved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June
21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant, on April 2,
1975,
was notified to appear for investigation on
the following charge:
"Your responsibility for being in violation of Rule G of the
General Regulations and Safety Rules, and for being in
possession of a loaa.ed pistol on company property at the Wood
Street Terminal at about
9:00
P.M., Thursday, March
27, 1975."
Form 1 Award No.
7234
Page
2
Docket No.
7097
2-C&-NW-CM-'77
The investigation was originally scheduled for April
7, 1975
but was
postponed until April
29, 1975
wt the request of the claimant. The record
shows that the reason for the pestponeument was to ascertain the disposition
of criminal charges against the claimant, involving the same incident subject
of the claim, which were dismissed by the court on April 25,
11075
account
failure by the state to prove ownership of tool box in question in this case.
Rule G states, in perttinent part, as follows:
" Being under the influence of alcoholic beverages or
narcotics while on duty or on Company property is prohibited.
The use or possession of alcoholic beverages or narcotics while
on duty or on Company property is prohibited." ( emphasis added
Rule
19
of the General Regulations and Safety Rules provides:
"19.
Employees are prohibited from having loaded or unloaded
firearms in their possession while on duty except those employees
authorized to do so in the performance of their duties or those
given special permission by the Superintendent."
Petitioner bases his plea for a sustaining award on two premises;
(1) the carrier failed to meet the burden of proof because neither the vehicle
the drugs or the pistol were tY:.e property of the claimant, and (2) tYie court
charges against claimant were dismissed. However, certain facts of record are
unrefuted.
1. Claimant was driving the questioned vehicle during the entire period
involved in this matter and, according to the transcript, had been driving it
all night;
2.
The drugs and pistol were in the open, the drugs being on the
dashboard of the vehicle in front of the driver and the.pistol being in the
top of an open tool box between the driver's seat and the front passenger
seat.
3.
The claimant was on company property at the time of his apprehension
while driving the subject vehicle.
Petitioner is apparently attempting to show that since claimant did not
own the vehicle he was, therefore, not in possession of its contents and,
secondly, that the dismissal o_' the criminal charges in court precludes a
finding bar the carrier that art Agreement rules and/or company regulations
had been violated.
Concerning the matter of =the relationship between the action of a court
of law and the investigation of an alleged violation of a contract provision,
the Second Division stated in ;?art, in Award
6619,
as follows:
Form 1
Page
3
3278.
Award No.
7234
Docket No.
7097
2-C&NW-CM-' 77
"Furthermore, the investigation is a civil proceeding while
the criminal charge is an offense against society as prescribed
by a statute or ordinance. A determination of one does not
necessarily offset the other. An investigation is a proceeding
prescribed by a contract. It has nothing whatsoever to do with
a violation of a criminal code. The question to be determined
at the investigation was whether or not the claimants violated
a contract or operating rule in connection with their employment."
(emphasis added)
Also, see Second Division Awards
5681
and
6983
and Fourth Division Award
Regarding the matter of being in possession of the subject drugs and
pistol it is noted that Webster's Dictionary defines "Possession" as:
"The act of having or taking 'into control; control or occupancy
of property without regard to ownership."
Referee Moore, in First Division Award
22294,
stated in this regard as
follows:
"The Board notes that 'having possession' includes having under
one's control. This means in one's home, in one's automobile
or any other place where the claimant would have control over
the articles in question."
Based upon a thorough review of the record before us it is clear that
claimant received a fair and impartial investigation, that the findings of
the carrier were supported by substantial evidence and that under the
circumstances in this case the: discipline assessed was not too severe. We
will therefore deny the claim in its entirety.
A WAR D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
600.10
F04.4
By
_ s arie Brasch - Administrative Assistant
Dated at Chicago, Illinois, t;1is 4th day of March,
1977.