Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7993
SECOND DIVISION Docket No. 7923
2-SLSF-CM-`79
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
System Federation No. 22, Railway Employes'
Department, A. F, of L. C. I. 0.
Parties to Dispute: ( (Carmen)
(
( St. Louis-San Francisco Railway Company
Dispute: Claim of Employes:
1. That the St. Louis-San Francisco Railway Company unjustly withheld
Carman Helper Robert A. Brahe, Springfield, Missouri, from service
on July :L,
1977,
and. subsequently dismissed him folloYring an
investigation conducted on July 15, 177, in violation of the
controlling Agreern,ent.
2. That the St. Louis-San Francisco Railvay Company deprived Cayman
Helper Robert A. Brake of a fair hearing, in violation of the
controlling Agreement.
3. That Cax^man Helper Robert A, Brake be restored to service with all
seniority rights, vacation rights and benefits that are a condition
of his employment; that he be compensated for all lost time plus
annual interest; that he be reimbursed for all losses sustained
because of loss of coverage under health and welfare and life
insurance agreements during the time he has been held out of service.
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 involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21, 193+.
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 appeared at an investigative hearing on July 15, 1977, in
reference to his "alleged possession of intoxicants and narcotics while on
your assigned duty". Following the hearing, the Claimant received the
following notice of disciplinary action dated July 25, 1979:
Form 1 Award No. 7998
Page 2 bucket No. 793
2-SLSF-CM-'79
"As a result of formal investigation conducted with you
July 15, 1977 concerning your responsibility in
connection with your alleged possession of intoxicants
and narcotics while on your assigned duty, July 1, 1977.
This is a violation of Rule 'G' of the Rules, Regulations,
Safety Rules and Instructions governing Mechanical Department
Employees, Form MP-1 Standard, Effective March 1, 1957.
From facts developed in the :investigation, you are hereby
dismissed from service of the St. Louis San Francisco
Ra ilvTay Company, "
The Board finds, 2,t the outset, that the Claimant received a fair hearing
as referred by Rule 35(a ). Despite the sharp contentions between the hearing
officer arid the
Organization's
representative, as deraons-Lrated in the record,
the Claimant eras afforded ample opportunity .for the presentation of his
defense.
Upon arriving for work, Claimant's vehicle (a van) and the vehicle of
another erlployee were involved in a collision in Carrier's parking lot prior
to the start of the employees' shift.
On behalf of the Clairant, the Organization alleges that Claimant reported
for duty and shortly thereafter was suzunoned back to the scene of the accident.
Before returning, it is alleged that the Claimant talked with his foreman,
indicated he was "shaken-up, upset and nauseated as a result of the collision,"
and was then removed from service at his request to be examined by a physician.
This was not contradicted by the Carrier. (This examination occurred during
that day, at which time the physician released the Claimant for duty,)
When the Claimant returned to the accident scene, a Special Agent, who
had been summoned, reported (later) that the Claimant "appeared to be in a
very relaxed condition, the pupils of his eyes appeared dilated and he was
acting strange". Allegedly, the Claimant admitted to the Special Agent to
being "strung out". The Special Agent, accompanied by another Special Agent.,
requested and received frown the Claimant permission to look into his van.
Within the vehicle, the Special Agents found what laboratory tests showed to
be as marijuana; a bottle of whiskey with "one inch" left in the bottle; and
another whiskey bottle "with a few drops left".
On the basis of this and the hearing record, the Claimant was dismissed
from service.
The Board takes particular note of the charge against the Claimant:
"possession of intoxicants and narcotics while on your assigned duty" as
a violation of Rule G.
Form 1
Page
3
Award No.
7998
Docket No.
7923
2-SL,SF-CM-'
79
As quoted by the Carrier, Rule G provides:
"The use or possession of intoxicants or narcotics is
prohibited, "
Rule 35(a) requires that an employe subject to investigation be "apprized.
in writing of the precise charge". Clearly the charge was confined solely
to this point, and on this the Carrier's disciplinary actions must stand or
f a11,
In the Board's judgment, the charge is not proven. The Special Agent's
opinion as to the Claimant's condition is not pertinent to "possession"
(and, inc:idently, uas an opinion rendered shortly after the Claimant was
involved in a tra:wynatic accident), At the tune of the search of the van,
Claimant had 'teen released f,ro:m duty and., further, the presence of the items
found in the van do not consti.twte "possession" -While on duty. The Board
found similarly in Third Division Award No. 15023 (?i?railtan), in which
under different particular circumstances, the Board held:
"The fact that the bottle (of wine) was ultimately removed
from ... (Claimant's) locked autanobile, negates any
argument that the Claimant had the intoxicant in his
possession, while on duty."
The Carrier pursued a narrowly based charge. The hearing record did
not produce evidence to sustain the charge. Allegations beyond the scope
of the charge are immaterial,
The Board will sustain the claim, but the remedy is specifically
limited to that provided in Rule 35(a), namely, reinstatement with seniority
rights unimpaired and compensation for wage loss, if any, less amounts
earned in other employment.
A W A R D
Claim sustained as per Findings.
Attest; Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
_iRo's~marie Brasch - Administrative Assistant
Dated at[[ Chicago, Illinois, this 11th day of July,
1979.