The February 22, 1998, edition of The Meridian [Mississipil Star reported that the Claimant had been arrested for "public drunk." The notice, listed among the law enforcement reports, stated the Claimant's age and address, but did not identify him as an employee of the Carrier. Upon learning of the publication of this notice, the Carrier informed the Claimant that his employment would be terminated effective March 9, 1998. The Claimant thereupon exercised his right under the Agreement, and requested a formal Hearing. The Hearing was conducted on March 30, 1998. On May 26, 1998, the Organization was issued the following letter by the Carrier's Manager, Train Operations:
The Organization first argues that the Carrier's decision to uphold the Claimant's dismissal was untimely. It cites Rule 20(c), which reads as follows:
The Carrier answers that the Rule contemplates the Hearing being completed upon receipt of the transcript. According to the Carrier, the delay in receipt was due to the court reporter, who is not an employee of the Carrier, being on a special assignment. This, says the Carrier, was beyond its control.
The Organization also argues that there is no nexus between the fact that the Claimant might have been arrested and his employment with the Carrier. It notes that Form 1 Award No. 35765
the newspaper item made no mention of his employment. The Carrier responds by stating the Claimant was on notice that he would be subject to dismissal for this offense, and this was not the first time such action had been taken against him for being arrested for public drunkenness. In 1997, says the Carrier, the Claimant was dismissed after being arrested for public intoxication, and was reinstated on a leniency basis.
The Board finds merit in both of the objections raised by the Organization. There is nothing in the Rule that gives any indication that the parties intended the time limit for the issuance of discipline to commence upon receipt of the transcript. Had that been their intent, it would have been easy to state it in the Agreement. Rather, the parties based the time limit upon "completion of the hearing." The last line of the transcript indicates the Hearing Officer declared the Hearing "closed." This was the completion of the Hearing. Thus, we find the Carrier's decision was rendered 57 days after the completion of the Hearing, rather than within the ten days allowed by the Agreement. This is more than a de minimis violation. The failure to issue a decision sustaining the charge on a timely basis has the same effect as finding that the charge was not sustained. Rule 20(f) then requires the Claimant to be returned to his former position and paid for all time lost.
Even if the Carrier's decision had been timely, the disciplinary action would not be warranted. There are limits to which a Carrier may regulate an employee's off-duty conduct. The mere fact that the Claimant was arrested for public drunkenness has no bearing upon his ability to perform his job as a Trackman. There is no assertion the Claimant's offense occurred on the Carrier's property, and the fact that the Claimant was not identified as an employee of the Carrier makes it doubtful that anyone would think ill of the Carrier as a result. While sobriety is certainly required of Trackmen when they are at work, the fact that one might get drunk on his own time should not be the Carrier's concern. If the Claimant has a propensity for drunkenness, the appropriate action would be referral to an employee assistance program.
We conclude, therefore, that the Carrier violated the Agreement by dismissing the Claimant. The claim must be sustained. Form 1 Award No. 35765
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.