Form 1 NATIONAL RAIIRQ4D ADJUSTMENT BOARD Award No.
8872
SECOND DIVISION Docket No. 8515
2-SOU-EW-182
The Second Division consisted of the regular members and in
addition Referee Francis X. Quinn when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:,
( Southern Railway Company
Dispute: Claim of EMloyes:
That the Southern Railway System dismissed Student Electrician R. N.
Scott from service without dust and sufficient cause and deprived him
of his right to earnings from June
24, 1978,
until such time as he is
restored to service.
That accordingly, Southern Railway System be ordered to restore Student
Electrician R. N. Scott to service with seniority rights unimpaired and
compensated for all wages lost commencing with the date of his discharge
June
24, 1978,
and continuing thereafter until such time as he is restored
to service.
That the Southern Railway System be ordered to make Student Electrician
R. N. Scott whole with respect to all rights, privileges and benefits
associated with his railroad employment, such as, but not limited to
vacation, health and welfare, and insurance benefits.
Findings:
The Second Division of the Adjustment Board, upon the whole record and. all
the evidence, finds that:
The carrier or carries and the employe or employes involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act
as approved Joe 21,
193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Critical to the resolution of the instant dispute is an examination of the
events leading to Claimant's dismissal insofar as the time limits of Rule
34
are
concerned. The following is a chronology of these events:
May
17, 1978
- J. Z. Gregory, Asst. Manager, Diesel Shops received the second
of two anonymous phone calls alleging that Claimant Scott was
selling marihuana on Company property;
May 20,
1978
- Claimant emptied his locker in the presence of Asst. Manager
Gregory, Special Agent Glover and Mr. Dempsey, at which time
there was found a bag containing two bags of a substance
crapped in cellophane; Chattanooga City Police were called and
For m 1 Award No. 8872
Page 2 Docket No. 8515
2-SOU-EW-182
placed Claimant under arrest and in
addition the
police took ~r
the two bags and stated that they would be sent to the
Department of Safety Toxicology Lab to be analyzed;
June 22, 1978 - Messrs. Gregory and Glover were given a copy of a report fraw
the Lab which stated that the bags contained 49.0 grams of
marijuana;
June 24, 1978 - Preliminary investigation was held in accordance with Ru1ta
34(b) at which time the Claimant requested to be represented
by Mr. W. P. Wells;
June 26, 1978 - Claimant was advised that as a result of the preliminary investigation he was dismissed from the Carrier's service;
June 27, 1978 - Formal investigation was requested in Claimant's behalf;
July 7, 1978
a
After request for postponement was granted the Organization,
formal investigation was held on July 7, 1978, with Claimant
present and represented;
July 14, 1978 - Claimant was notified that hu. was found guilty of having 49.0
grams of marijuana in his possession on May 20, 1978, and that
his dismissal would remain
ire
effect.
The pertinent provision of Rule 34 which is at issue is the following sentence
in paragraph
(e):
"No charge shall be made involving any matter of which the carrier
officers involved have had knowledge for more than thirty (30)
days."
Rule 34 of the Agreement between the Carrier and its electricians represented
by the International Brotherhood of Electrical Workers, enumerates all the rights
to which an electrician is entitled
!,a
discipline cases.
The Organization throughout the handling of this case has contended that the
Carrier violated the time limit provisions of Rule 34(e). That rule provides that
"no charge shall be made involving any matter of which the carrier officers involved
have had knowledge for more than thirty (30) days." The record indicates there was
no preliminary investigation on May 20, 1978. On the night of
may
20, Assistant
Manager Gregory found a substance he suspicioned to be marijuana. However, this
fact was not etonfirmed until the Tennessee Department of Safety Crime Laboratory
report was received on June 22, 1978. Following receipt of that report, the Carrier
obtained the "knowledge" referred to in Rule 34 and conducted a preliminary
investigation two days thereafter. Therefore, the claimant was given a timely
preliminary investigation within the meaning of Rule 34, and the Organization's
contentions to the contrary ire without merit.
The evidence in the case indicates that the claimant was guilty of conduct
unbecoming an employee when he was in posaesr;ion of 1+9.0 grams of an illegal _
intoxicating drug (marijuana) an company property on May 20, 1978. The Assistant
Manager, Dtesel Shop, had asked Claimant to open b is locker and remove the contents.
Form l Award No.
8872
`Page
3
Docket No. 8515
2-SOU-EW-'82
After Claimant had removed most of the contents from his locker, he picked up a
brown paper bag and tried to conceal it from the Carrier officers by placing
it against his side.
'rho
brown paper bag contained two bags of a substance wrapped
in plastic. It is clear from the abovo that the two bags of substance were tn.
Claimant's locker and in his possession on May 20,
1978.
The Organization attempts to defend Claimant's act Cons by contending that he
never acknowledged possession of the bag. Although at the time of his arrest
Claimant denied that the substance belonged to him, he made no such allegation at
the time the bag was found in his locker.
The "Findings" of Referee Roadley in Second Division Award No.
7231+
are germane
to this point and read, in pertinent part, as follows:
"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 22 291+, 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."
Finally, we find that the discipline imposed in this instance is commensurate
with the severity of the offense. The investigation proved that Claimant had in his
possession 1+9.0 grams of marijuana on Company property and was guilty of conduct
unbecoming an employee. Possession of an illegal intoxicating drug on Company
property is a serious offense and warrants dismissal. Therefore, the Carrier's
action in dismissing Claimant was fully warranted and justifiable.
In a case involving a clerk on Company property who was dismissed for his
involvement with drugs, the Third Division held:
"Given the Carrier's undisputed strong and unequivocal stand
toward narcortics and any employe connection therewith, the
Board cannot find that the Carrier acted in an arbitrary or
improper manner. 3 NRAB, Awd. 2191+9, BRAC vs. SOU (Marx)."
In another case on point with the present one, the Board upheld the Carrier's
dismissal of a trainman who was found in possession of marijuana on company property
by holding:
a
Force 1 Award No.
88`l2
Page
4
Docket No. 8515
2-SOU-EW-'82
"There can be no doubt of claimant's guilt. The only issue is
whether permanent dismissal under these circumstances is
justified. The claimant had been an employee of the Carrier
for approximately one and one-half years. Under those
circumstances, as previously stated by this Board, there is
no justification to rule that permanent dismissal is harsh,
severe or unjust. The employee simply has not built up
enough credits or seniority to justify reinstatement. On the
foregoing basis the Board finds no support for the claim."
PLB 912, Awd. 189, UPU(C&T)= vs. N8dW (Moore)
The Carrier has shown that Claimant was given a timely investigation and was
afforded all the rights to which he was entitled under Rule
34.
The evidence in this
case conclusively prayed that the claimant was in possession of an illegal
intoxicating drug on Company property on May 20, 1978 and was guilty of conduct
unbecoming an employee. Therefore, in view of the seriousness of this offense, we
conclude that the Carrier did not act in an arbitrary or capricious manner in
dismissing Claimant, and the claim must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By .
0s re Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 27th day of January, 1982.
140