PARTIES Brotherhood of Maintenance of Way Employees
 TO and
 DISPUTE Atchison, Topeka and Santa Fe Railway Company
 STATEMENT "1. That the carrier violated the collective
 OF CLAIM Bargaining Agreement, particularly Rule 13
 thereof, when on May 7, 1981, they sus
 pended New Mexico Division Trackmen H.
 Williams, Peter Garcia and R. G. Padilla
 and subsequently discharged them from
 service following an investigation con
 ducted May 14, 1981.
 2. That the Carrier shall reinstate Messrs.
 Williams, Garcia and Padilla to their
 former positions with seniority, vacation
 and all other rights unimpaired and,
 additionally compensate-them for loss of
 earnings suffered on account of Carriers
 improper action."

 FINDINGS
 Upon the whole record, after hearing, the Board finds that the parties - herein are carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.

 In this dispute the three Claimants, 'were dismissed following an
 investigation in which Carrier allegedly presented evidence, that they
 had been in possession of marijuana (and also alcohol in the case-of
 one of the claimants) on Company premises in violation of Company rules
      ' _2_


The record of the -investigation reveals that on May 6, 1981, the company
 had received an anonymous telephone call indicating that one of the
 employees in the gang in question had been observed smoking marijuana.
 As a result, of this anonymous call, the Trainmaster with two other
 officers and three special agents of carrier's Police Department together
 with a New Mexico State Policeman and a local Sheriff and one of his
 deputies converged on the outfit cars occupied by the Claimants at
 approximately 8:45 P.M. The record indicates that a search of cars,
 which were parked on Company property, revealed that: .(1) a quantity
 of marijuana seeds were found in the pockets of a pair of coveralls
 belonging to one of the claimants (2) a search of another claimant's
 vehicle revealed marijuana roaches, seeds and several containers of beer
 and (3) a search of another Claimant's personal belongings revealed a
 box which was used to accomodate marijuana (verified by laboratory tests
 subsequently). The record also reveals that criminal charges brought
 against the Claimants in the State Courts were dismissed.

 There is no doubt but that there was sufficient evidence in the record to justify carrier's conclusion that Claimants were guilty of the charges. Thus, the Board concludes that the evidence was sufficient to warrant the dismissal of claimants in accordance with the Company's rules.

 The Board is concerned, however, in spite of the ultimate conclusion in this dispute, about the methods used by carrier in the investigation of the violations by Claimants. First, .it is clear that Carrier's reaction
 · PLB-2774
 . . AWD. N0. 49 -
                              ,3 - CASE N0. 59


to the anonymous phone call was triggered not by the violation of the Carrier's rule with respect to controlled substances per se, but by the fact that the particular substance was marijuana. it is also clear that the massive investigation of the Bunk Cars by several Company officials together with State and Local Police was an indication of Carrier's concern about the fact that marijuana was involved. The Board wishes to point out that the same standards apply to alcoholic beverages and marijuana as indicated in Company rules. There was no excuse whatsoever to react as it is apparent, in this instance, with a massive concern and physical search which certainly would not have been the case had there been only beer involved. Thus, the Carrier is put on notice that the same standards should apply to all controlled substances without regard to the nature of that substance since its own rules make no distinctions.

 AWARD
              Claim denied.


            _. i


                  ~~ 6

                  I. M. Lieberman, Neutral Chairman


        AV og-

G. M. Garmon, Ca rier Member S. E. Fleming, Employe Member
 February 8, 1983 -
 Chicago, IL
        DISSENT TO NWANLI 110. 45 Oh- I'D6LIj- LJStr t.OAr;h NO. 2774


The Carrier I·t~mr..)er's Lli,~,rrtt is only rin~_acted toward tile Board's admonition of the Carrier fur the met:rcas useo in conducting the investigation to determine whether controlled substance-,, and particrr larly marijuana, were present in Lnu bunk car occupieu by the claimants.

In putting the Carrier "on riutice that the some standards should apply to all contrullea substances without regaru Lo the nature of that substance since its own riles make nu dislinctiun~-," the Hoard has either ignored or lost sight of the fact that the pussession of marijuana is illegal, while the pusseSsiun of bumr is rut. Obviously, at the time the search of the bunk cars was being organized, it was not known how much, if any, marijuana would ba found in the bunk cars, anu it certainly was not known that any criwinul char.Jes whicn might be: filed against the claimants would be dlsmist;ed by the courts.

For the reasons set forth above, the Carrier Mumher dissents to that part of Award No. 49 admonishing tie: Carrier fur the methods utilized in determining whuther the bunk car contained marijuana in the instant case, and advises the Board Lhat, natwiLhstanulny its admonitions to the contrary, the sam,2 standards cerrnot (end will nut) b.? applied to "all controlled substances" and alcuhulic buverages until or unless the possession of "all contrulied substances" and alcoholic beverages is looked upon the same in the eyes of the law.


                          C. -M. Garmon

                          Manager - Labor Relati ns

                          Carrier Member of Public Law

                          Ouaru No. 2774


Dated at Chicago, Illinois _ ---
 February 8, 1983