NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number M'r1-24693
George V. Boyle, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Seaboard Coast Line Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Bridge Tender W. W. Farmer for alleged violation of
"Rules G, 1132" and Rules "16, 26 and 27" was without just and sufficient cause
and on the basis of unproven charges (System File 37-SCL-81-1112-39 (81-14) G).
(2) The claimant shall be reinstated with seniority and all other rights
unimpaired, his record be cleared and he shall be compensated for all wage loss
suffered.
OPINION OF BOARD: The `Claimant, a Bridge Tender of three years service at the time
of his dismissal, was removed from service after a hearing
on the following charges: "...It appeared you were using and possessed what
appeared to be narcotic while on duty; had.permitted others to use a narcotic
while trespassing on company property not reporting it to your supervisor and did
not properly inspect a train.
You are herewith charged with violating Rules G, 1132, and 1134 of the
current Operating Rules of the company aryl also with violating rules 16, 26 and 27
of the Company's Safety Rules for Engineering and Maintenance of Way Employees,
effective September 1, 1967.
It has also been determined that the remains of a cigarette and asps found
on the table in the bridge control house on the early morning of November 25, 1980
were the remains of marijuana. This appeared to have been used by you during
your tour of duty the afternoon and evening of November 24, 1980. For this you
are also charged with violation of the rules referred to above."
The Organization, on behalf of the Claimant, assert that the dismissal
was without just and sufficient cause and was based upon improper am unproven
charges.
They also assert that, pursuant to Section 7 of Rule 39, charges must
"be filed within ten (10) days of the date the violation becomes known to management."
Since the incident of November 25 was not raised until the Carrier's notice of
December 10, this charge is barred.
It is argued also that the Claimant can only be charged with violating
Safety Rules 26 and 27 dealing with unauthorized persons on the premises, trespassing
and the requirement to report such incidents and such charges do not warrant
discharge.
Finally, it is alleged that the hearing was neither fair nor impartial and
that the recording tapes' lapses are indicative of a lack of fairness.
Award Number 24818
Locket Number MW 24693 Page 2
Several of the issues in dispute should be disposed of first to allow
the Board to concentrate on the heart of this case.
1) The Organization is correct in its assertion that the incident of
November 25, 1980 cannot be considered since the time limit cited under Section 7
of Rule 39 is controlling. Moreover the Conducting Officer, Division Engineer
Laws states to General Chairman Medders, "I agree that he was not charged within
this within the ten days... "(sic). Thus any discipline contingent upon this
incident is inappropriate and void.
2) By the Claimant's own admission he is in violation of Rules 1132, 26
and 27: Rule 1132 reads in part "Bridge Tenders ...must not permit unauthorized
persons to trespass upon the bridge". The Claimant's testimony is as follows:
"Mr. Burke-looked in ashtray and found a little cigarette. And he asked me
what it was. And I told him that a friend stopped down and he was smoking a
joint and put it in. the ashtray and he left...". Also Mr. Laws questioned Mr.
Farmer:
"Q. Is that in accordance with company rules?
A. I told Mr.Medders the only charges that the company legally had
me for was allowing someone to stop by the bridge..."
Again,:
'
"Q. ...Now you do admit that you had a friend in the house and your
friend left the marijuana butt in the ashes.
A. Yes sir... "
"Q. ...You admit you did have a friend in who was smoking marijuana.
A. Yes sir..."
"Q. A11 right Rule No.27 that you were charged with reads, trespassers
should be requested to leave the premises and report made to
supervisor. Did you not consider this person visiting you as a
trespasser?
A. No sir. I consider him as a friend.
Q. Be was an unauthorized person, wasn't he?
A. Yes he was an unauthorized person..."
Thus the Claimant admits that he violated Rule 1132 - "Bridge tenders...
must not permit unauthorized persons to trespass upon the bridge"; Rule 26 -
"Unauthorized persons and others not having legitimate company business to transact
are prohibited from entering or loitering about railroad offices, stations, warehouses,
yards, shops, equipment, trestles and other properties. Persons so observed must
be reported to supervisor", and Rule 27 - "Trespassers should be requested to
leave the premises and report male to supervisor."
Award Number 24818 Page 3
Docket Number MW-24693
3) That the hearing was both fair and impartial is born out by a careful
study of the transcript. Both the Claimant and his representative had ample
opportunity to call witnesses, testify, cross examine witnesses and to introduce
evidence. The lapses in the tapes were occasioned by necesary change-over or
unexplained interruptions at non-critical moments:
(a) The first interruption is on Page 10 of the transcript while
Mr. Medders, the Organization's Representative is questioning Special
Agent Burke. It is marked "(End Tape 1)." Page 11 begins
"Mr.Medders questions Special Agent Burke - (Begin Tape 2)."
(b) The second interruption is on Page 20 while Mr. Medders is
speaking to Mr. Laws, the Conducting Officer.
"Mr. Medders to Mr. Laws - ...I object to this line of questioning
and I request that we refrain from it because it, because I'm
speaking specifi.^a11y about the third paragraph of the charges
which (tape cut off - continued on tape 3)
(End of Tape 2)
(Begin Tape 3)
continued - because it was not filed properly in accordance
with Rule 39 of the current agreement..."
Having disposed of the violation of Rule 39 in favor of the Claimant
this is non-critical material.
(c) The third interruption is on Page 33. Mr. Medders questioning
of Mr. Burke continues on Page 34 noted only "(End of Tape 3)",
"Formal Hearing (Begin Tape 4)."
(d) The fourth interruption - page 43 the questioning is by Mr.
Laws to Mrs. Cobb, a Carrier witness "End of Tape 4" - Begin Page
44 "(Begin Tape 5)". Nothing is lost in the continuity.
(e) End of Tape 5 is on Page 58 "(End Tape 5)."
(f) The first mid-tape interruption occurs on Page 64.
Mr. Laws is questioning the Claimant Mr. Farmer.
"Q....Now you do admit that you had a friend in the house and
your friend left the marijuana butt in the ashes.
A. Yes sir (tape cut off and then on in conversation)... children
down at the bridge house?
Q. No, they should not have children at the bridge house."
Award Number 24818 Page 4
Docket Number MW-24693
Apparently the Claimant alleged that others had brought their children
to the bridge house on occasion. This is irrelevant to the prime
issue at hand and, since the claimant has admitted his guilt to
this offense, his assertion of similar offenses on the part of
others is irrelevant. The lapse on the tape could be a defect in
the tape or the machine and had nothing to do with the fairness or
impartiality of the hearing.
(g) The final lapse occurred on Page 68 when Mr. Laws announced
"Hearing concluded at 6:00 p. m. Mr. Farmer, you will remain out of
service until a decision is reached.
Mr. Farmer - How long will that take?
Mr. Laws
- Well
I'm gonna try to make it within the rules - 10
days.
Mr. Farmer - Well, the last time it took a lot longer... What about
pressing charges...
Tape was cut off
Tape was cut back on
Mr. Laws - I neglected to do one thing. This hearing is not concluded
at 6:00 p. m. 1 told you Mi. Farmer, at the conclusion of the hearing
that your personal record would be reviewed..."
This is certainly non-critical material dealing with the aftermath
of the hearing.
The most serious charges, however, are proscribed by Rule G in the
Operating Rules and Rule 16 in the Safety Rule Book. Both forbid the use of
intoxicants and drugs while on duty and Rule G also states that possession of
these and other substances "while on duty, while on Company property... is sufficient
cause for dismisssal."
ne hearing elicited testimony from two witnesses that on the night of
December 5, 1980 the Claimant had in the Bridge Control House "a partially-smoked
marijuana cigarette... along with various portions of stems and a marijuana seed."
Also it was testified that "...it was obvious that there was something apparently
wrong with Mr. Farmer 's faculties inasmuch as he was very nervous. His eye pupils
were dilated and he did not appear to be in any control of himself 100%". Further
testimony was to the following effect:
"Q. And give me your opinion of Mr. Farmer's condition when you got to
the bridge on the afternoon or
evening of
December 5th.
A. One of the
signs,
the surest signs that they taught us
on
drug
use is the dilation of the pupils of the eye. When they are under
the influence of any type of narcotic or halluciogenic or anything
like that, the pupils of the eye will not constrict when exposed to
light. It stays dilated.
Award Number 24818 Page 5
Docket Number MW-24693
"Q. Did you notice this about Mr. Farmer?
A. Yes, sir, his eyes were dilated and when we approached into the
bridge house under the
neon lights
where he was in the office, the
pupils of his eyes would not constrict at a11.
Q. In your opinion, he was under the influence of some type of drug?
A. Yes, sir, at that time, I would think so."
Further the two Carrier witnesses testified that while there was no
illegal substance in sight earlier, when the Claimant reentered the bridge house
after retrieving his coat and inspecting the train, a plastic bag containing
marijuana was seen on the steps of the bridge house.
The two witnesses accompanied by a law
enforcement officer
simultaneously
noted the bag and it was picked up by the officer who remarked to the Claimant,
"Mr. Farmer, you dropped your bag of pot."
While the Claimant denied that he either dropped or threw the bag on
the steps, the conclusion is inescapable that he had it in his possession. and
left it on the steps. This is circumstantial evidence but probative, persuasive
and conclusive. If one lands on a desert island and finds there the remains of a
campfire, such circumstantial evidence is clear and convincing enough to force
one to conclude that someone has been on the island before. In this case, the
steps were unobstructed according to two peoples' testimony, (and the hearsay
testimony of a third), but the bag of marijuana appeared there after only the
Claimant stepped over them and no one else was close or had been near the steps.
That evidence is sure, certain and conclusive even if circumstantial.
Although in the Claimant's testimony he denies having the substance in
his possession or depositing it on the steps, it is not for this Board to resolve
conflicts in testimony. The Hearing Officer must do so since he is the one who
must judge the credibility, honesty and integrity of the witnesses from firsthand observation at the
Therefore, the Carrier had substantial reason for concluding that the
Claimant violated Operating Rule G and Safety Rule 16 and the Board concurs in
that judgement and will not upset the discipline for so serious an offense.
The claim is denied.
FINDINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and upon the
whole record and all the evidence, finds and holds:
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;
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Award Number 24818 Page 6
Docket Number MW-24693
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 denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
-
ATTEST:
Nancy
. O
ever - Executive Secretary
Dated at Chicago, Illinois, this 16th day of May, 1984
