PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Extra Gang Laborer J. Tyndall, Jr. for alleged 'Violation of General Notice dated March 12, 1980 of the President and General Manager, Norfolk and Portsmouth Belt Line Railroad, Rule G of the N&W Operating Rules, and the misstatement of fact on his Report of Medical Examination' was without just and sufficient cause, on the basis of unproven charges and in violation of the Agreement (Carrier's File 40-Tyndall).
(2) The Claimant shall be reinstated with seniority and all other rights unimpaired and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: The record shows that Claimant had previously been dismissed
 from Carrier's service on August 27, 1981, for sleeping on
 duty. The dispute arising from that occurrence was progressed to this Division
 of the National Railroad Adjustment Board and docketed as MW-24804. On December
 21, 1982, the parties agreed to the reinstatement of Claimant and the withdrawal
 of Locket MW-24804 from the Board, resulting in dismissal Award No. 24130. One
 of the conditions of Claimant's reinstatement, set forth in Letter Agreement of
 December 21, 1982, was:


On December 22, 1982, Claimant went to Carrier's physician for a physical examination prior to return to service. The Carrier's medical form pertaining to past history contained, what appears to be rubber stamped:


Claimant's form was checked 'No'. On December 27, 1982, Carrier's Officers were advised that analysis of urine sample taken from Claimant on December 22, 1982, had been received, indicating positive for the presence of marijuana, as result of which Claimant was notified that he was disqualified for further employment with the Carrier.
                    Locket Number MW-25624


The Organization requested a formal investigation. The investigation was scheduled for and conducted on January 6, 1983, Claimant being charged with violation of General Notice of March 12, 1980, Rule ·G' of the NEW Operating Rules, which were applicable, and with misstatement of facts on the form covering his medical examination (that part pertaining to Narcotics). The rules referred to are set forth in the record, and we see no necessity for repeating them here.
A copy of the Transcript of the investigation of January 6, 1983, has been made a part of the record. Following the investigation, Claimant was notified by Carrier's Assistant Engineer that his dismissal "remains in effect'.
We have carefully considered the evidence entered into the investigation, the contentions of the parties in the on-property appeal, and the contentions before the Board. without passing upon the procedural issues raised, we do not find in the investigation the degree of evidence necessary to warrant the permanent dismissal of Claimant. Claimant contended from the beginning that he underst-the question on the med then using narcotics, and not as to whether he may have tried narcotics x. past. The form itself is not clear on this. we understand that traces of narcotics may remain in a person's body for some time after the actual use thereof.
While we have issued numerous Awards upholding the dismissal of employes for the use of, possession of, or trafficking in drugs, we need more proof than is presented here.
Based upon the record before us, the Board concludes that Claimant should be restored to service with seniority and other rights unimpaired, but without any compensation for time lost while out of service, provided that, within thirty days of the date of this Award he passes satisfactory examination by Carrier's physician.
In passing, we note that Page 3 of Carrier's Exhibit "Cff is simply not legible. As we have stated in previous Awards, if parties to disputes before this Board expect exhibits and other materials to be considered, then such exhibits and materials must be submitted in legible form.
        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 resp~ 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 discipline was excessive.

                    Award Number 25420 Page 3

                    Locket Number MW-25624

                    A W A R D


        Claim sustained in accordance with Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest: ,
        Nancy -Executive Secretary


Dated at Chicago, Illinois, this 30th day of April 1985.