NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-23399
Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
_Missouri Pacific Railroad Company
( (Former Chicago and Eastern Illinois Railroad Co.)
STATEMENT OF CIAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackmen R. Stevens, J.
K.
Smith and B.
K.
Lenich was without just and sufficient cause and on the basis of unproven
charges (Carrier's File S 247-5745).
(2) The claimants shall be reinstated with seniority and all other
rights unimpaired and they shall be compensated for wage loss suffered."
OPINION OF BOARD: Claimants J.
K.
Smith, B.
K.
Lenich and R. Stevens, with
about three months of service with the Carrier, were
employed as Trackmen on Carrier's Tie Gang 5273, a bunk car gang, stationed at
Corning, Ark. On the evening of December 12, 1978, they were observed by
Carrier's Special Agent smoking a "bong", a device used in smoking marijuana,
in their automobile located on Company property. The local police were
notified who apprehended the Claimants along with a package of marijuana found
under the front seat of the automobile. The Claimants were arrested and
placed in jail on the charge of possession of a controlled substance, marijuana.
Claimants were removed from service pending formal investigation,
which was held on December 22, 1978. Copy of the transcript of the investigation was made part of th
Claimants were given a fair and impartial hearing. They were represented
by the General Chairman of their choice, given the right to present witnesses,
which they chose not to, and were permitted the right to cross examine the
Carrier witnesses.
The three Claimants in the investigation admitted having in their
possession marijuana as well as admitting smoking it as charged. In their
defense they contended they were not on company property when the offense
took place, however, this was refuted by testimony of Carrier's witness, the
Special Agent.
Rule G of Carrier's uniform code of Safety Rules reads:
"The use of intoxicants or narcotics is prc~...1_ted.
Possession of intoxicants and narcotics while m duty
is prohibited."
Award Number
23451
Docket Number
MW-23399
Item
5
of the Conditions of Employment reads as follows:
"Conditions of Employment - In consideration of my
employment, I hereby agree:
"(5)
to familiarize myself with and to observe all rules
and regulations governing services to which I shall at
any time be assigned; to maintain strict integrity of
character; to faithfully observe the rules and/or
policy governing the use or possession of intoxicating
liquors or narcotics; and to perform my duties to the
best of my ability,"
Page 2
Based on the entire record, including Claimants' statements in the
investigation on December 22,
1978,
the Board finds no proper basis for
interfering with the discipline imposed
The claim will be denied.
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.
Claim denied.
Attest:
a4v*
A&4494
Executive secretary
Dated at Chicago, Illinois, this 8th day of December
1981.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division