ORG File No. I-RRG-1901

                                        Carrier File 1b. 2-IBC-1517


Parties Brotherhood of Maintenance of Ilay Employes

 to and

 Dispute Baltimore & Ohio Railroad Company

 Statj_nt Claim filed on behalf of Westem Region Rail Gang Track Fare=. Aaron D.
 of Claim: Kinser for restoration of his seniority unimpaired and reirbursenent for
 all tire lost at the aonlicable rate of pay as a result of the discipline
 of dismissal administered to 7tr. Kisser follaqing a hearing held or. Janu
 ary 12, 1976 on charges of conduct unbecoming an employe and the possession
 and use of a hallucinogenic drug while on railroad property on Decerber
 23, 1975.

          Findings: r1he Board finds, after hearing upon the :,±ole record and all evidence, that the parties herein are Carrier and Ee!ployee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agree ,rent dated October 27, 1976, that it has jurisdiction of the parties and the subject natter, and 'chat the parties were given due notice of the hearings held.


        Claimant Track Gang Foraran A. D. Kisser. along with five (5) members of his gang in their Cam Car No. 11?, were placed under arrest and resroved therefraa on December 23, 1975 about 11:30 p.m. by the Grove City, Ohio Police as a result of a public disturbance complaint registered with said police by a neighbor, for "disturbing the peace." Subsequent search of their Canp Car by the police produced four plastic bags containing cannabis sativa, eormonly called "marijuana." Additionally, a cigarette and pipe were foumd which also contained the sane substance, marijuana. As a result thereof, all said employees were additionally charged crith possession of marijuana. The employees were released on bond frcm jail the follaring morning.


          Claimant returned to service and he continued working until January 12, 1976, at which t5.me he attended an investigation held to hear the charges concerning the December 23, 1975 incident. As a result thereof, Claimant, on January 27, 1976, 47as advised:

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        "It has been found that you were at fault for conduct unbecoming an

        employee by participating in a disturbance on the camp cars to the

        extent that it was necessarry for the neighbors to call the Grove City police and that you are at fault for possession of, and use of, an hallucinogenic drug while on ca-p cars located on Railroad Company property at Grove City, Ohio, which led to your arrest by Grove City Police at 11:27 P.M. Tuesday, December 23, 1975, in violation of Rule 14 of the Engineering Depart-ent, Maintenance Rules, and the discipline administered is dismissal from service of the Railroad Ca.T)anv."


        Rule 14 provides:


        "The use of intoxicants, narcotics or dangerous drugs by erployees subject to duty, -Mmile on duty or on Cor.~any property is prohibited. Possession of intoxicants, narcotics or dangerous drugs or participation in any transaction involving sane by employees while on duty or on Corcxany property is prohibited."


        7bere were no procedural questions attaching which prevented the Board from addressing the r ,.erits of this dispute.


        "1re charges made against all the erploye°s involved in the December 23, 1975 incident were premised on the occurrence of first, conduct unbecam.ing an employee, and, secondly, the possession and use of marijuana. Either of such charges, if proven, would warrant the i.^toJsi.tion of stem, discipline. Carrier correctly identified the test to be met when it stated: "Me central issue in 'This case is whether there was sufficient Probative evidence adduced from the investigation to support the charge wit respect to Track Foreman A. D. Kinser."


        1e Board finds that there was not sufficient probative evidence adduced to support the charges rade against Claimant. Clain-ant had categorically denied all charges and allegations. The necessary supporting evidence to support a conclusion of guilt was here lacking.


        Ube transcript reflects that Cc= Car 11Io. 114 had four (4) roars, or compartments, to which seven (7) traclmen were assigned. Claimant Track Foreman Kinser had one campartreat while six '(6) tracla:prr were assigned, two each, to the other three (3) rooms. Vie December 23, 1975 incident under investigation occurred in the corpartneent occupied by Trachmen Ken Harget and Dave Gage and which was located on the north end of the carp car. These taco employees, along with,tcxr other traclaren

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                    -3- Award No. 5


involved, although notified, chose not to attend the investigation. Claimant Fore= 's room was located several rows away tax-ards the South end of the car. The evidence given reflects that Claimant Track Gang Foreman had stayed in the Camp Car. He had not gone into taAm with the other members of his track gang where they admittedly had been drinking. Nor was Claimant in tie. cccpartrcant involved when a disturbance (argucrent) with a ccuiplaining neighbor occurred. Claim ant testified that he had earlier turned off the stereo in said ccanpartTent, because it was blaring, that he was in bed because of not feeling well, that he got up, got dressed when he heard the aforementioned disturbance with a neighbor. Clainant stated that he went out, talked with and pacified the comnlaining neighbor and that thereafter he went into the ccEm-partrmnt in question where he was about to try to tone the five trackaen down when the Grove City police cam into the room. There was no evidence that Claimant possessed any marijuana nor was there clear evidence that he had used a hallucinogenic drug.

 The circumstancial evidence as to the use of marijuana may be linked to others at the scene of the incident but not to Claimant.

 In the circumstances of weighing the evidence to conclude whether Claimant was in that compartment on Decanber 23, 1975 in his role as a supervisor to try to quiet the gang dorm or whether Claimant was in there as one of the participants in the noisemaking and use of marijuana, it would represent an abuse of discretion to conclude, as did Carrier here, the latter. The doubt raised by the testimany of Claimant which was corroborated in part by the testimony of other trachmrn, the paucity of clear, probative evidence offered by the city police office at the investigation on the drug allegation as related to Claimant, and the fact that such drug charge was later dropped by the city's prosecuting attorney, all should have redounded to the benefit of Claimant. The charges were extremely serious and the penalty paid therefor was npre so. Suspicion cannot be permitted to be a substitute for the needed convincing evidence. Therefore, the
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                              -4- Award No. 5


          Hoard, in the circumstances, is 'filled to sustain the claim.


Award: Claim sustained.

          Order: Carrier is directed to make this Award effective within thirty (3Q) days of date of issuance shoran below.


A. J. Cunningham, Uyee Member L. W. Burks, Carrier NerEber

Arthur T. Van Wart, Chairman

and Neutral Yema'er


Issued at Atlanta, Georgia; June 9, 1977..