(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Norfolk and Western Railway Company

1. Carrier violated the Agreement between the parties when on October 18, 1974, they arbitrarily and capriciously dismissed Clerk L. I. Mackey.

 2.. The Carrier's action was unjust, unreasonable and an abuse of Carrier's discretion. The discipline was assessed even after the charges were shown to be completely unsubstantiated.

 3. Carrier shall now reinstate L. I. Mackey with all rights and privileges unimpaired and pay him for all time lost, including time spent attending the hearing.

 4. In addition to the money amounts claimed herein, Carrier shall pay claimant an additional amount of eighteen (18) percent interest compounded daily.

 OPINION OF BOARD: The claimant, Lee I. Mackey, was employed by the Norfolk
 and Western Railway Company as an extra agent-telegrapher
 on November 13, 1967 and was assigned as an extra clerk on the extra board
 at Gambrinus, Ohio.

 On the night of August 14, 1974, the home in which claimant was residing in Massillon, Ohio, was entered and searched by Perry Township police officers, along with a unit of the Stark County Metro Squad. Several items were found in the house, including one box of pills, two pipes, two small bottles of brown liquid matter, one box of vials and one bag of pills. Additionally, claimant admitt the owner of a jacket in which a container of green-brown vegetable matter, which was later proven to be marijuana, was found.

 Following the search of the house, claimant (along with other individuals found in the house) was ar


On August 23, 1974, following proceedings in the Massillon Municipal Court, claimant was convict sentenced to serve a total of 360 days in jail; however, the sentence was reduced and claimant did s 9:00 a.m., August 28, 1974, at which time he was released.

 On August 23, 1974, at 12:23 a.m., claimant marked off from duty on the extra board and remained marked off until 12:50 p.m., August 28, 1974.

 On August 29, 1974.claimant was given the following notification to attend a hearing scheduled for September 3, 1974, which read in part:

Thereafter, at the request of representatives of the claimant two postponements were granted and the hearing was eventually held on October 9, 1974. In connection with one of the postponements the claimant pointed out that his lawyer thought it better that he not show up at the hearing and gave him a letter providing his statement on the matter. Accordingly, a postponement was granted to permi after the hearing and was dated September 3, 1974.

 Subsequent to the hearing and on October 18, 1974 claimant was notified by letter from Trainmast Reed that his responsibility for the charges had developed in the hearing and he was dismissed from the service of the carrier. On October 21, 1974 Local Chairman Traynor wrote to the carrier appealing the decision on various grounds and requested reinstatement for claimant. The appeal was processed through the appropriate levels and became the basis for the claim before this Board to the effect that carrier violated the agreement between the parties when they arbitrarily and capriciously dismissed claimant. It is a even after the charges were shown to be completely unsubstantiated."

 A number of issues emerged including the following: that claimant was not apprised of the specific charges against him; there was no opportunity to face his accusers and cross examine them; the hearing was unfair for various reasons. In addition that claimant was not unavailable for service within the meaning of the charges; and that claimant's plea of "no contest" was not an admission of guilt.


We have carefully considered all of these matters and we have made a thorough review of the record. Each contention will be discussed:

 With respect to claimant's claim that there was insufficient specificity in the charges the phrase "unlawful activity" is questioned. Rule 27 requires that the charge be specific but that does not mean more than that.it should provide sufficient notice to permit the accused to prepare his defense. There is the technical requirements of a criminal complaint. Here the "unlawful activity" in the charge was linked to claimant's arrest and conviction on August 23, 1974 for the possession of the-drugs in violation of the cited rule. We believe this constitutes sufficient specificity to satisfy Rule 27. The fact that the arrest date was misstated does not change our view; claimant was neither mislead nor prejudiced by this error.

 We believe the argument is far-fetched that claimant's right to face his accusers and cross examine them was violated here. It questions the proof of claimant's arrest, conviction and sentencing by the Massillon Municipal Court through the testimony of Mr. Carr, a detective employed by carrier. Admittedly, Mr. Carr had not been present during the search of claimant's house, nor when he was arrested, nor when he was tried and sentenced. Clearly, Mr. Carr h testimony was provided for the purpose of verifying certain documents which attempted to establish the facts of the arrest, conviction and sentencing of claimant. Much was made of the "hearsay" aspect of this proof. We believe this argument misses the point. There was no contested issue here and claimant could not be prejudic Walker, a letter from claimant's attorney dated September 3, 1974 (mentioned previously) verifies in every essential way the information introduced through the testimony of Mr. Carr. That letter, using different terms, admits the facts of the arrest, conviction and sentencing of claimant for the aforementioned misdemeanor. Viewe
In support of the claim that the hearing officer was not impartial certain illustrations from hearing testimony were offered indicating the officer had prior knowledge prejudged the case because he had such prior knowledge. We disagree. This conclusion does not follow from the premise and we do not agree there was prejudgment here. See Award 20859, Third Division.

 Certain allegations were made to the effect claimant was denied "due process". We are not inclined to agree. Unless such rights are provided for in the agreement be law, hardly a basis for enforcement. There is no basis for such claims in this agreement. See Awards 18106, 16602.


The fact the hearing officer was also the charging officer is not a defect that undermines the essential fairness of the hearing. There is no prohibition of this in the agreement and the Third Division awards have not viewed this as a basis for unfairness. See Awards 21017, 20859 and 20828.

 During"the hearing the authority of the hearing officer was challenged on the grounds he admitte which deals with discipline and investigations. If this question, asked at the outset, had the purpose of determining whether the presiding officer was empowered to rule on appropriate questions in the conduct of the hearing, there was ample proof of this in the way he conducted this difficult hearing, regardless of his negative answer. If the question was intended for a different purpose, such as to to give advisory opinions or provide rule interpretations in the abstract, the negative answer was proper. We conclude this objection lacks merit on either basis.

 Coming to other questions, we consider the claim that Operations Bulletin No. 150 is an improper indicates this rule was promulgated unilaterally by the carrier and is not based upon an agreement~between the carrier and the representative of the employes. We believe an ob are well established in the railroad industry. Reasonable rules, not inconsistent with the ag binding upon the employes covered. Here we have no basis for holding that Operatinns Bulletin No. 15 was objection that the bulletin was not properly disseminated or that claimant was ignorant of the bulletin, we are of the view there was substantial evidence in the record that the bulletin was disseminated properly. It follows that claimant is chargeable with knowledge of its contents whether or not he saw it.

 The argument is also made that claimant had "asked to be marked off the extra board which is permissible under the agreement". Presumably, it is claimant's view that it is not a matter of concern to the carrier that claimant spent this time in jail. We do not see it this way. Being in ,jail, as the consequence, of convictio to protect his assignment. See Third Division Awards 20307, 19847, 12993.

 Lastly, we came to claimant's explanation, included in the attorney's letter of September 3, 1974, that claimant's plea of "no contest" was not an admission of guilt under Ohio law. Assuming this is true it does not undermine the carrier's decision here. Under Operations Bulletin No. 150 the offense is complete when an employe is convicted of any misdemeanor for possession of narcotics or dangerous dr irrelevant.
                  Docket Number CL-21389


We conclude that all these objections lack merit. Claimant had a full and impartial hearing. The evidence in support of the charges against him was substantial and credible. The conclusion reached that hp engaged in unlawful activity which resulted in his arrest and conviction in violation of the Operations Bulletin No. 150, is warranted. We have no basis to assert that his dismissal was an inappropriate punishment, and under the circumstances we do not find it to be arbitrary, capricious or unreasonable.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;,

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                    A W A R D


        Claim is denied..


                        NATIONAL RAILROAD ADJUSTiENT BOARD

                        By Order of Third Division


ATTEST: &-.I&.
              Secretary


Dated at Chicago, Illinois, this 31st day of August 1976.