Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11253
SECOND DIVISION Docket No. 11131
. 2-SLSW-EW-'87
The Second Division consisted of the regular members and in
addition Referee Ronald W. Nelson when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(St. Louis Southwestern Railway Company
Dispute: Claim of Employes:
_ 1. That the St. Louis Southwestern Railway Company unjustly
dismissed Electrician J. H. Travis from service on November S, 1984.
2. That accordingly, the St. Louis Southwestern Railway Company be
ordered to compensate Electrician J. H. Travis eight (8) hours each day, five
(5) days a week including holiday pay commencing with November 5, 1984 and
continuous until such time as he is returned to service of the Carrier with
seniority rights unimpaired and all fringe benefits paid as though he had
remained in the service of this Carrier.
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.
The Claimant was employed by the Carrier at the Pine Bluff Diesel
Shops, Pine Bluff, Arkansas. He holds a seniority date of February 13, 1967.
Claimant was employed as an Electrician by the Carrier for more
than twenty and one-half (20 and 1/2) years. Claimant's personal record was
clear until he was charged and convicted by the State of Arkansas on October
1, 1984, for possession of a controlled substance with intent to deliver.
Claimant pleaded guilty to the charges which is a Class C felony under the
Arkansas Law. Claimant was fined eight thousand dollars ($8,000) and placed
on probation for five (5) years. Subsequently, the Claimant's fine was
removed, and the period of probation was terminated.
Fo rm 1
Page 2
Award No. 11253
Docket No. 11131
2-SLSW-EW-'87
On November 5, 1984, the Claimant was removed from service pending
Investigation on the charge that he violated Rule G and Rule 801 of the Rules
and Regulations Governing Mechanical Department Employes. The pertinent portion of each Rule is quoted below:
Rule G - "The illegal use, possession or sale while
on or off duty of a drug, narcotic or
other substance which affects alertness,
coordination, reaction, response or safety,
is prohibited."
Rule 801 - "Employes will not be retained in the
service *** who conduct themselves in a
manner which would subject the railroad to
criticism."
An Investigation was held on November 20, 1984, and the Claimant was found
in violation of the Rules as charged. As a result, he was dismissed from
service. A Claim was timely filed on behalf of the Claimant and denied at
each level of appeal.
The Organization alleges that Rule G as stated in the charge letter
did not apply to the Claimant as he was an employe of the Mechanical Department. In support of its allegation, the organization included as Exhibit 1 of
the Investigation, a copy of revised Rule G from the Rules and Regulations of
the Transportation Department. On page 2 of the Transcript of Investigation,
the Organization quoted Rule G from the Rules and Regulations Governing
Mechanical Department Employes which was effective April 1, 1978. It is true
that this was the Rule G which was effective April 1, 1978; however, as
pointed out by the Carrier, Rule G of the Rules and Regulations Governing
Mechanical Department Employes was revised effective April 30, 1982, and reads
in its entirety as follows:
"G. The use of alcoholic beverages or intox
icants by employes subject to duty, or their
possession, use, or being under the influence
thereof while on duty or on Company property is
prohibited.
Employes shall not report for duty under the
influence of, or use while on duty or on Company
property any drug, medication or other substance, including those prescribed by a doctor,
that will in any way adversely affect their
alertness, coordination, reaction, response or
safety. Questionable cases involving prescribed
medication shall be referred to a Southern
Pacific Medical Officer.
Form 1
Page 3
Award No. 11253
Docket No. 11131
2-SLSW-EW-'87
The illegal use, possession or sale while on or
off duty of a drug, narcotic or other substance
which affects alertness, coordination, reaction,
response or safety, is prohibited. (Effective
April 30, 1982)."
It is clear, therefore, that the Claimant was correctly charged with Rule G
and Rule 801. There can also be no doubt that Rule G as quoted by the Carrier
in the charge letter, the caption of Investigation, and the dismissal letter,
was Rule G from the Rules and Regulations Governing Mechanical Department
Employes and was applicable to the Claimant.
Undoubtedly, an article announcing the Claimant's felonious activity
and subsequent conviction which appeared in the November 3, 1984, edition of
the Pine Bluff Commercial was read by many readers who were aware the Claimant
was an employe of the Carrier. It was not, therefore, unreasonable for the
Carrier to conclude that the Claimant's misconduct and the resulting publicity
had subjected the Carrier to criticism and loss of good will.
A careful review of the case law shows that the Board has consistently held that felonious conduct, such as that displayed by Claimant in the
instant case, whether occurring on or off the Carrier's property and which
results in a conviction, will support the dismissal of Claimant. See Second
Division Awards: 9996, 10626; see also Third Division Awards: 21761, 21825,
24994; and see PLB No. 3469; Award No. 33.
Thus, after a careful review of the entire record, this Board is of
the opinion that the discipline imposed by the Carrier, in view of the
seriousness of Claimant's conviction, was neither arbitrary, capricious, nor
excessive.
Accordingly, this Claim is denied.
A W A R p
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Executive Secretary
Dated at Chicago, Illinois, this 29th day of April 1987.