NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-25319
Paul C. Carter, Referee
(Joseph J. Mira
PARTIES TO DISPUTE:
(Norfolk and Western Railroad Co.
(Lake Region)
STATEMENT OF CLAIM:
If and when an award is brought to agreement, I wish to be reinstated
as a employee with all seniority and rights unimpaired, and all monies lost.
OPINION OF BOARD: The record shows that Claimant (the Petitioner herein) entered
service in Carrier's Maintenance of Way Department on April 26,
1977. On May 22, 1981, he was notified to report for investigation on June 12,
1981, on the charge:
"**conduct unbecoming an employee in that you were charged with
possession of cocaine (felony 4th degree charge amended in Sandusky
Municipal Court, Wednesday, May 6, 1981, to a Misdemeanor, 3rd
degree, at which time'you were found guilty, fined $250.00 and court
cost of $15.00 and sentenced to ten (10) days in jail, which was
suspended on condition of good behavior which is in violation of Rule,
1714 of the N&W Safety Rules and Rules of General Conduct."
The formal investigation was conducted as scheduled and a copy of the
transcript has been made a part of the record. On June 25, 1982, Claimant was
dismissed from Carrier's service.
The record shows that Claimant was represented in the investigation
by the Vice Chairman-Secretary Treasurer, Brotherhood of Maintenance of Way
Employes. In the investigation Claimant's Representative objected to the use
of a tape recorder to record the proceedings. We see no proper basis for such
complaint. From our experience, the use of tape recorders to record
investigations seems to be a canmon practice. See also Third Division Award
No. 15890 and Second Division Award Nos. 9969 and 9973.
From our review we find that the investigation was conducted in a
fair and impartial manner. Following Claimant's dismissal, the Claim was
handled in the usual and customary manner on the property by the Maintenance of
Way Organization, up to and including Carrier's Highest Designated Officer of
Appeals, but failed resolution, resulting in Claimant progressing the Claim to
this Board.
We agree with the Carrier that S. L. Britt (former Division Engineer)
is not a proper Party to the dispute. The proper Parties to this dispute are
the Claimant and the Carrier.
Award Number 25263 Page 2
Docket Number MS-25319
Carrier's Safety Rule 1714, referred to in the letter of charge,
reads:
"1714. The conduct of any employee leading to conviction of any
felony, or of any misdemeanor involving the unlawful use, possession,
transportation, or distribution of narcotics or dangerous drugs, or
of any misdemeanor involving moral turpitude is prohibited."
We find that substantial evidence, including the Claimant's statement,
was presented at the investigation in support of the charge against Claimant.
While the record shows that Claimant was in furlough status when notified to
attend the investigation on May 22, 1981, and was in such status when dismissed
on June 25, 1981, he did maintain an employer-employe relationship, and the
Carrier was justified in terminating that relationship.
The possession, use of or trafficking in drugs are considered serious
offenses in the Railroad Industry, usually resulting in dismissal. See Second
Division Awards Nos. 8205, 8237 and 9996; Third Division Award Nos. 24728,
24525, 24608 and 23410.
The contention of Claimant that he was not familiar with Carrier's
Safety Rule No. 1714 is not persuasive. As an Employe with about four years of
service, we think it is reasonable to hold that Claimant had a responsibility
to make himself knowledgeable of Carrier's Safety Rules.
There is no proper basis to disturb the discipline imposed by the
Carrier.
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;
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 J. Dever--- Executive Secre ary
`.
Dated at Chicago, Illinois, this 28th day of February 1985.