(A) The Carrier violated the terms of the Clerical Agreement when on December 19, 1990, Mr. Vincent Benz was wrongfully discharged from the service of the railroad as a result of an investigation held on December 6 and 10, 1990, in the 20th Floor Conference Room, 100 N. Charles Street, Baltimore, Maryland 21201.

(B) That Clerk V. Benz be restored to service with all seniority rights and other rights unimpaired, and he shall be compensated at an amount equal to what he would have earned, including daily wages, subsequent increases, overtime, and holiday pay. Further, his record be expunged of all charges, that he be compensated for all amounts paid for medical expenses for himself and his dependents, and he be reimbursed for all premium payments he incurred to purchase substitute health and life insurance, due to the Carrier's administration of this unjustified discipline."

Parties to said dispute waived right of appearance at hearing thereon.

Claimant was arrested, while off-duty, on November 23, 1990. He was subsequently charged with possession with intent to distribute cocaine, possession of drug paraphernalia, possession of Xanax and maintaining a common nuisance. Claimant was released from custody on bond. A newspaper article which appeared in the Baltimore Sun on November 24, 1990 identified the Claimant, described the circumstances of his arrest and the charges filed against him.

The Carrier informed the Claimant by letter dated November 29, 1990, that he was charged with "...conduct unbecoming an employee in that you were arrested on November 23, 1990, incarcerated and charged with..." [above cited]. An Investigative hearing was conducted on December 6 and December 10, 1990. Subsequent to the Investigation, Claimant was informed on December 19, 1990, that "the discipline assessed is suspension from service pending review of the final disposition of your pending criminal charges at which time final discipline will be rendered."

Prosecution of the criminal charges against Claimant were indefinitely postponed by the Maryland State's Attorney by notice dated May 2, 1991. On September 6, 1991, the District Court placed Claimant's case, with his consent, on the "STET" docket which meant that Claimant gave up his right to a speedy trial and the criminal charges could be opened, by the Court, at any time within one year.

Upon complete review of the evidence presented, the Board finds that the Carrier conducted a fair and impartial hearing as required under the Clerical Agreement. Claimant was notified of the charges, represented and allowed to present witnesses, crossexamine witnesses and make any state The hearing was completed on December 10, 1990, and a decision issued on December 19, 1990.

The Board further finds that the indefinite suspension of Claimant, commencing December 10, 1990, was improper and not in compliance with Rule 27. The carrier's technical violation of the rule is mitigated, however, by its reasonable suspicion that Claimant was involved in substance abuse. In similar cases, the hearing has been adjourned, pending the outcome of the criminal trial.

Several additional procedural issues raised by the Organization have been considered, however, the Board concludes that the case is best adjudicated on its merits.

The Carrier's Investigation supports the charge of conduct unbecoming an employee. The Carrier's reliance on the police statements, including evidence that various illegal drugs and drug paraphernalia were confiscated from Claimant's residence supported the charge.

The record further indicates. that Claimant was "operating" what could be described as a "crack house." During the police search of his residence, the Claimant's phone rang continuously, with those calling inquiring about drug purchases. Subsequent to one such conversation, a married couple arrived at Claimant's residence and purchased cocaine from one of the undercover agents. Claimant was suspended, pending the outcome of his criminal prosecution.

The Board further finds that the Carrier's offer to Claimant of reinstatement on July 5, 1991, "subject to entering and successfully completing the Carrier's drug/alcohol rehabilitation program" ended the period of suspension from December 10, 1990 through July 5, 1991. Claimant's rejection of the reinstatement offer resulted in his dismissal from service.

Claimant's arrest and the evidence adduced pursuant to the search of his residence provided substantial evidence of his drug abuse as well as provided grounds for the Carrier's concern that his continued presence might interfere with the orderly conduct of its business. The police report also indicated that Claimant had various drug paraphernalia for his. own personal use with one homemade pipe having his name on it. I smoked marijuana cigarettes and another device containing burned cocaine residue.

With respect to the dismissal of the criminal case against Claimant by virtue of nol orosse, Third Division Award 26780 is noteworthy.

"The fact that criminal charges brought against Claimant were ultimately terminated upon entry of nolle proseQUi also cannot change the result. The standard of proof in criminal proceedings and proceedings before this Board are substantially different. Fourth Division Award 4412. Further, our examination of the record evidence satisfies us that the Carrier has met its burden in this proceeding irrespective of the outcome of the criminal proceeding, which we note, was merely a determination that Claimant would not be

Given the clear and convincing evidence of Claimant's drug involvement coupled with his voluntary, but unsuccessful, treatment in an EAP from December 10, 1990 through January 9, 1991, paid for by the Carrier, it was not unreasonable for the Carrier to require further assurance that he no longer had a serious chemical dependency.

It is undisputed that the Carrier has the right to discipline employees for offenses which occur during an employee's off-duty time, particularly when such conduct can adversely affect the working climate for other employees. As stated in Second Division Award 8001:

"The question raised by Petitioner's defense has been decided by the Board in numerous cases. It is well established that a company may discipline an employee for off duty violations, especially those involving drugs and abuses of alcohol, and that such violations need not show damages ...."

A similar view was expressed in Third Division Award 24728:

"The use of drugs, or the dealing in drugs, is considered a serious offense in the railroad industry, usually resulting in dismissal. See Second Division Awards 8205, 8237, Award 8 of Public Law Board No. 1324, and Third Division Awards 24356, 23264, 22530 and 22547.

See also Second Division Award 8001, and Third Division Awards 23410 and 24608."

With respect to the Carrier's offer of conditional reinstatement, prior Board decisions provide as First Division Award 15319:

"...we are bound by the principles long recognized on this Division that it is not the province of this Board to pass upon the credibility of witnesses in the first instance, to weigh the evidence or to undertake to resolve conflicts; that if there is substantial evidence to support the Carrier's determination, we are without power to disturb it by substituting our own

In addition, the Board finds- the foregoing record meets the standards of the substantial evidence rule which were succinctly stated in a First Division Award 12952 as follows:

"It must be true that the evidence at least must have sufficient substance to support a reasonable inference of fact as distinguished from a possibility or an unsupported probability."

The Board notes claimant was suspended from the service on December 19, 1990, and on July 5, 1991, by agreement with the District Chairman and was granted the opportunity to return to service with the understanding that he enter and successfully complete Carrier's drug/alcohol rehabilitation program. Claimant rejected the opportunity of returning to service.

Based upon the record before us, we direct that Claimant again be offered reinstatement to the service, consistent with his seniority standing, with all contractual rights unimpaired, but without compensation for time lost as a result of his suspension. Claimant's reinstatement shall be contingent upon him entering and successfully completing Carrier's drug/alcohol rehabilitation program.

A W A R D