Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8748
SECOND DIVISION Docket No. 9507
2-C&O-MA-'83
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( International Association of Machinists
PARTIES TO DISPUTE: ( and Aerospace Workers
( Chesapeake and Ohio Railway Company
DISPUTE: CLAIM OF EMPLOYES:
1. The Chesapeake and Ohio Railway Company arbitrarily and capriciously
dismissed Machinist Charles T. Carico from service effective June
27, 1980 following investigation held on June 9, 1980.
2. Accordingly, Machinist Charles T. Carico should be immediately
restored to 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 employes 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 was dismissed from the service of the Carrier following a formal,
investigation on the charges of "conduct unbecoming an employee of the Chesapeake
& Ohio Railway Co. resulting in your arrest on charges of possession of illegal
narcotics at approximately 12:05 p.m. on April 30, 1980, absent without permission
from 12:30 p.m. until approximately 2:00 p.m., and falsification of reason for
absence." The Organization contends that the Carrier acted in an arbitrary
and capricious manner in their dismissal of the Claimant in that the Claimant
failed to receive a fair and impartial investigation in that Claimant was
denied his contractual rights under the collective bargaining agreement prior
to the investigation, during the investigation, and subsequent to the investigation.
On April 30, 1980, the Claimant was employed at the Carrier's Huntington
Locomotive Shops, with his assignment being from 7:00 a.m. to 3:30 p.m., and
lunch period from 12:00 noon to 12:30 p.m. Shortly after the commencement of
their lunch period, the Claimant and two passengers were arrested by the local
municipal police, formally charged with possession of marijuana and held in
the county jail until their bond was posted. Prior to Claimant's return to
work at approximately 2:00 p.m., a co-worker, who was also arrested phoned
their supervisor and informed him that they were experiencing "car trouble"
and would be delayed in their return to work from lunch. Furthermore,
Claimant, accepting the advise of the arresting officer, forfeited bond, in
essence pleading guilty to the charge of possession of marijuana, a
misdemeanor in that state.
Form 1 Award No. 9748
Page 2 Docket No. 9507
2-C&O-MA-' 83
The Organization contends that the Claimant was not afforded a fair and
impartial hearing in accordance with Rule 37 of the Agreement, which states in
pertinent part:
"No employee will be disciplined by suspension of dismissal without
a fair hearing by a designated officer of the Company. Suspension
in proper cases pending a hearing, which shall be prompt, and in
cases not requiring discipline as severe as dismissal, shall not be
deemed a violation of these rules. At a reasonable time prior to
the hearing, the Employee shall be appraised of the precise charge
against him. He shall have reasonable opportunity to secure the
presence of necessary witnesses and shall have the right to be
represented by his duly-authorized representative. If the judgment
be in his favor, he shall be compensated for the wage loss, if any,
suffered by him."
We cannot agree with the contention of the Organization. Referee Carter in
First Division Award No. 5197 succinctly states the nature and purpose of this
rule:
"The rule providing that an employee will not be suspended or
dismissed without a fair and impartial trial contemplates that the
accused will be appraised of the charge preferred against him, that
he will have notice of the hearing with a reasonable time to prepare
his defense, that he shall have an opportunity to be present in
person and by representative, and he shall have the right to produce
evidence in his own behalf and the further right to cross-examine
witnesses testifying against him."
We also find it significant in our review of the transcript, that when
asked if they were ready to proceed, both the Claimant and his representative
responded in the affirmative. We believe that had the Claimant and/or his
representative been unable to proceed with the hearing, the time to have
raised this intention was at the onset of the hearing, not after a finding and
decision had been rendered. Specifically, we address this point because of
the Organization's forceful and serious contention that the Claimant was not
permitted to consult an outside attorney on May 23, 1980 during his assigned
shift. We concur with the position of the Carrier that the Carrier is under
no obligation to grant employes permission to be away from duty for personal
business, especially when this business could have been easily been undertaken
on off-duty hours. However, even if we were to agree with the contention of
the Organization, we find that in the approximately six weeks from the date
the Claimant was involved in the incident that gives rise to the charges he
faced, until the date of the investigation, there was more than ample time in
which to consult with legal representatives of the Claimant. The Carrier's
action did not place the Claimant in any position of undue hardship. See also
Second Division Award No. 8323 (Dennis) and Award No. 18 of Public Law Board
No. 1952 (lamas).
Form 1 Award No. 9748
Page 3 Docket No. 9507
2-C&O-MA-' 83
With respect to the organization's second contention that the hearing was
not fair and impartial and that the evidence as adduced from the hearing did
not meet the carrier's burden of proof substantiating Claimant's guilt of the
charges Claimant faced, we also must disagree. In essence, Claimant faced
three serious charges at the formal investigation: (1) conduct unbecoming an
employee; (2) absent without permission; (3) falsification of reasons for
absence. Even if we were to completely disregard the charge of conduct
unbecoming an employee, which we do not, there can be no dispute that the
Claimant admitted at the formal investigation that he did not have permission
to be absent from 12:30 p.m. to 2:00 p.m., and he, by his own admission, lied
to his supervisor as to the reason he was absent. Referee Perelson said in
Third Division Award 16168:
"Dishonesty, in any form, is a matter of serious concern, and
dishonesty usually results in dismissal..."
See also Second Division Awards 6285 (McGovern), 6606 (Pagoda), and 7570
(Wallace).
We believe that more than enough evidence is patently contained in the
record to support the findings and conclusions of the hearing officer. We
find it unnecessary to delve into the Organization's contention surrounding
the charge of conduct unbecoming an employe, conduct in this case involving
the alleged possession of marijuana and arrest by local authorities. Award
No. 2 of Public law Board 3017 (Peterson) states:
"It is certainty understandable that the Claimant would have
apprehensions about staying away from work for too long a period of
time and of being concerned as to what effect the marijuana arrest
would have on his employment status. However, instead of being
honest and forthright about the situation, he elected to foolishly
try and cover up the situation. He gambled and lost. A blameless
man with a clean record might have fared better had he looked for
help from a judge in pursuing his proported innocence and in looking
for an understanding ear from the Carrier."
Lastly, with respect to the burden of the Carrier in disciplinary cases, we
find Second Division Award No. 7492 (O'Brien) relevant to the case before us:
"In the conduct of investigations and hearings to determine guilt or
responsibility in a particular case, the Carrier is not bound to
prove justification beyond a reasonable doubt as in a criminal case,
or even by a preponderance of evidence as does the party having the
burden of proof in a civil case. The accepted maxim in railroad
discipline is that there must be substantial evidence in support of
the Carrier's action. 'Substantial evidence' has been defined as
'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion' (Consolidated Edison Co. v. Labor
Board, 305 U. S. 197, 229)."
l
>>
Form 1 Award
No.
9748
Page 4 Docket
No.
9507
2-C& O-MA-' 8 3
The Organization further contends that the Claimant was assessed excessive
discipline. We cannot agree. The Claimant had been in the service of the
Carrier for approximately 109 months. As previously mentioned, the Claimant
admits that he lied to the Carrier and that he did not have permission to be
absent. Referee Fitzgerald, in Second Division Award 8130, stated the position
of the Board:
"A11 Divisions of this Board have
consistently recognized
the fact
that the Carriers owe to employees and to the public a heavy legal
obligation to maintain discipline among those in their employ, and
that it would be both illegal and improper for this Board to attempt
to impose any restriction upon a Carrier's complete freedom in
disciplinary matters except to the extent of recognizing and applying
restrictions created by an applicable labor agreement. Otherwise,
we do not substitute our judgment for that of the Carrier; we do not
weigh evidence; we do not attempt to resolve conflicts in testimony;
we do not pass upon the credibility of witnesses.^
Further,
in
Public Law Board 3017, Award No. 2, Referee Robert Peterson stated:
"As to the severity of the discipline imposed, the Board is of the
opinion
that not
only is
there sufficient evidence of record to
support Carrier's action in dismissing Claimant, but it is difficult
to see how the Carrier could have come to any different conclusion.
When one forfeits his bond, he also forfeits his right to continue
~rI
to proclaim his
innocence of
the charge. Further, falsification or
misrepresentation by an emloye to an employer is a serious offense
and one which, even standing alone, may be sanctioned as sufficient
cause for a Carrier to impose a penalty of dismissal upon an employee
based upon, as here, the facts of record."
It is a long standing principle that this Board will not substitute its
judgment for that of the Carrier. It is true that this Board has done so in
instances where
we have found the measure of discipline to be excessive or not
supported by the record. Our thorough
examination of
the records before us
and the submissions the parties yields no basis in which to upset the
determination and measure of discipline as assessed by the Carrier in the
instant case.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ATTEST:
Nancy Over - Executive Secretary
Dated at Chicago, Illinois, this 21st day of December, 1983