Form 1 NATI01`AL RAILROAD ADJUST? L~TIr BOARD Award No.
8097
SECOND DIVISION Docket
NO.
7885
2-C&t1W-BK-'
79
The Second Division consisted of the reg:.- °bers and in
addition Referee Irwin M. Lieberman when -as rendered.
( System Federation No.
;. a
:-.ailway Employes'
( Department, A. F. of
-11. - C
. I. 0.
Parties to Disoute: ( (Blacksmiths)
(
( Chicago and North Western Transportation Company
Dispute: Claim of Tnnloyes:
1. That, in violation of the current agreements, Welder Helper J. L.
Marinacci was unjustly dealt with when on date of J>>1y
29, 1977,
was assessed a dismissal from service of the Carrier.
2. That, accordingly, the Carrier be ordered to return Mr. Marinacci
to service immediately with:
(a) All seniority rights unin,_Paired.
(b) Compensation for all lost time at the prevailing rate of pay,
plus
61jo
per day until date of P:.ynent.
(c) Make him whole for all vacation rights.
(d) Pay all premituns for hospital, surgical, medical and dental
benefits for all time held out of service.
(e) Pay the prermiurns for group life insurance for all time held
out of service.
(f) Be allowed all other benefits that he would have been entitled
to had he not been removed from service.
(g) Remove the discipline from the record.
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 ann nloye within the meaning of the
Railway Labor Act as approved June 21,
1934.
This Division of the Adju;>tment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute -vr.ived right of appearance at hearing thereon.
Form 1 Award No.
8097
Page 2 Docket No.
7885
2-C&.M-4T -B K-'
79
Following an investigation held on July 21,
1977,
Claimant was dismissed
from service having been found guilty of smoking or being in possession of
marijuana while on duty, in viol==ation of
I'Zv-le
C. It is noted that ten
employes were charged and jointly investigated and as a result three
employes, including Claimant, were dismissed. Further Claimant was also
charged z-rith certain actions with respect to the witnesses in this dispute;
that matter was docketed as Docket
No.
7764
and was dealt with in Award
7874
in which the Claim was sustained.
First it must be noted that Carrier asserts that the instant dispute is
identical to that in AN,-,rd
7874
and that avwrd must be binding and this claim
dismissed. While we understand the posi Lion taken by Carrier we do not agree
with the conclusion reached; this dispute is based on separate charges and
a separate investigation than that contained in Docket
7764
and must be dealt
with separately.
This Bard has examined the transcript of the investigation in this
dispute with great care in an effort to determine whether the evidence
contained therein w--s sufficient to subrart Carrier's conclusion that
Claimant vas guilty. NTe have found that the testimony of key witnesses teas
inconsistent, conlzsinr and in scn:e instances contradictory. A number of
important Carrier ~-~itn-sses testified that statements given to Carrier
police officers were false and coerced. The testiznory of Carrier's most
important witness, Darrell. Riva, an enploye hired for the purpose of seeking
out other r.:arijuana users, z~;as secured on threat of turning him over to the
State Police unless hn turned -,.nformer. As the Board in iV4`ard No. 51 of
Public Law Board No.
1844
stated (dealing with the same investigation):
"Even if the genesis and b
ona fide of Rivals testimony-were
not so questionable, review of the transcript shows that his
testimony itself is inconsistent, contradictory and. unreliable.
The uncorroborated testiL:ony of a self-confessed marijuana user
as to event., occurring while lie vr.s on w marijuana high ...does
not measure up to our notions of substantial and convincing
evidence."
We must conclude, therefore, that Carrier's finding of guilt was not
supported by sulastant9_al credible evidence of record. For that reason, the
Claim must be sustained. 1rTe shall direct that Claimant be reinstated with
seniority rights unimpaired, with compensation for all time lost and that the
disciplinary action be removed from his record.
A W A R D
Claim sustained with the remedy indicated above.
Form 1 Award No.
8097
Page
3
Docket 1110.
7885
2-C&IITW-BK-'
79
NATIOTMZ RAILROAD ADJUSTP,1ENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY ,~-~.-?_.....-"`-_---°
--Erenarie Drasch - Adnninistrative Assistant
Dated at Chicago, Illinois, this 27th day of September,
1979.