Form 1 NATIONAL RAILROAD ADJUSMI-NT BOARD Award No.
8237
SECOND DIVISION Docket No.
8094
2-N&W-CM-' 80
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( System Federation No.
16,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of EtTloyes:
1. That the Norfolk & Western Railway Conpany violated the Controlling
Agreement of September 1,
1949,
as subsequently amended, when on August
9, 1977,
Apprentice Cayman J. K. Ayers was given a formal investigation
resulting in unreasonable and capricious assessment of Dismissal effective
August 24,
1977.
2. That the investigation was improperly arrived at and represents unjust
treatment within the meaning of Rule ITO.
37
of the Controlling Agreenent.
3.
That because of such violation and capricious action, the Xorfoln &
Western Railway Company be ordered to reinstate Apprentice Carman J. K.
Ayers to service when the other employees below Yx. Ayers on the
seniority roster are recalled fray.: furlough. To rei nstate J. '. Ayers
to service with seniority rights, vacation rights and all other benef-its
that are a condition of employment unimpaired, with coqpens anon -'or all
lost time plus
6%
annual -interest. To reimburse J. K. Ayers for all
losses sustained account loss of coverage under Health and Welfare anal
Life Insurance Agreements during the tire 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 Railmay 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.
An investigative hearing was held on August
9, 1977
pursuant to Agreement Rule
37
to determine Claimant's responsibility in violating company regulations governing
the conduct of its employees, when he was convicted of a felony in the Circuit Court
for the County
of,
r:Oanohe for distributing a controlled sl.1:bstance. Clwi:"rant
;'rc'.S
subsequently foland guilty of
violating
the cc.::-)wn7 re:,7Laa.tion which eras isued as
an operations bullet-in on June
19, 1774
and dismised from service effective
August 24,
1977.
This regulation reads: "The conduct of any employee leading to
conviction of any
misdemeanor
involving moral turpitude
(includne
without limitation.,
Form. 1 Award. No.
8237
Page 2 Docket No.
8094
2-N&W-CM-'80
the unlawful use, possession, transportation or distribution of narcotics or dangerous
drugs) or of any felony is prohibited." This disposition was appealed on the property
and is presently before us for adjudicated review.
In reviewing this case, this Board takes judicial notice of our.recent Award
8205 involving the S?V organiznticn and the same Carrier via. the,
dismissal of another employee on analagous charges. We held in that Award that,
"the record of the investigation supports the Carrier's finding that the Claimant
had indeed been convicted of a felony which was a breach of the regulations. The
crime for which Claimant was convicted eras serious. The penalty of dismissal is
well within the bounds of reason for cases such as this. The Carrier is not recruired
to deal lightly with employees who engage in felonious drug dealing."
Based on the record before us we find no mitigative rationale that would
warrant a variant penalty. Claimant's deportment was plainly inimical to the best
interests of his fellow employees and palpably detrimental to the safety and welfare
of Carrier's operations.
Our
ruling in Ai~rard
8205
applies with equal fervor here
and we will deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROkD ADJUETMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
`_-- R~marie Brasch - Adhinis trative Assistant
Dated 'at Chicago, Illinois, this 16th day of January
1980.