Case 1b. 31
71a3rd No. 31
Parties Brotherhood Railway Carmen of the United States i Canada
m
and
Dispute Norfolk and Western Railwy many
statement 1. That the NOT Railway CmtpmW violated the
of controlling Agreement of Septaffier 1, 1949, as
Claim subsequently
amended,
when m November S, 1981,
Upgraded Carman W. N.
lassie
was given a focaial
investigation resulting in an unjust dismissal,
effective NonenLer 23, 1981.
2. Shat the investigation was itqnmperly arrived at,
and represents imiust treatment within the
meaning
and intent of Role No. 37 of the controlling
hgresmient.
3. Rhat because of audm3.olatfon and unjust action,
the Nitv Railway Company be ordered to reinstate d.
N. llassie to service with seniority rights, vacation
rights, and all other benefits which are a condition
of mgloyment teinpaired, with compensation far all
lass of time, plus 6% normal interest.
Reiabuxsement of all lossee'
sustained,
aooount, less
of coverage under health and welfare and life
inswanoe agreements during the time held out of
service.
Findings: Rtee Hoard, after bearing upon the mole record and all
cadence, finds that the parties herein are Carrier and Eaployee within
the meaning of the Railway labor Act, as wended# that this Board is
duly cusstituted by Agreement dated January 29, 1981, that it has
jurisdiction of the parties and the subject , and that the parties
were given due notice of the hearing held.
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-_ -2- Award
MD. 31
Under date of septanber .11, 1981, Claimant was notified, in
t part:
' ° You are hereby notified to report to the Office
of the General Pomannn, Second Floor, !Motive Power
Office Building, Portwouth, Chios at 10:00 AV,
y,
tee'
17, 1981, for a formal
investigation to determine your responsibility in
connection of your oonAact unbecoming an employee in
that an Septeuber 9, 1981, in Scioto Oamty Cmsnn
Pleas Courts Portsmouth, Chin, you were found guilty
of the charge of possessing a drug abuse instrument.
If you desire to have a xepresertative or
representatives and/or witnesses present at this
investigations please arrarxge for their presence."
Rhe investigation, after repeated postponements at the reguest of
the Organization an Claimant's f, was held an Novenber 5, 1981.
Under date of Noveirber 23, 1983, Clainent was notified, in pertinent
part:
° .. As -a result of the formal investigation held on
Novanber 5, 1981, here at Portsmouth, Chic, you are
hereby dismissed, effective immediately, from all
service with the Norfolk arid Western Railway
Company.
/s/ J. R. oorea, (feral lorecan°
On lkx-il 1. 1977, Carrier caused
to
be promulgated the following
bulletin:
1O AM KMZVE PCVr7FR DEPAPMl1W FMPICIMM:
Effective with the issuance of this Bulletin, Pbtive
Power Deparbment personnel will be governed by the
following:
°'Dle conduct of any euployee leading
t0
Conviction of any felmy, or of any sdsdaeanor
involving
the unlawful use, possession,
transportation or distribution of narcotics or
dnxp, or WW misdemeanor involving
Wral turpitude is prohibited.'"
. . . p(.3 a-90
8
·3- hard
PD. 31
On February 10, 1981,
in
14m , Chin,
Claimant !footsie was
' arrested by the New Moston Police along with two other mm. She New
Boston Police had received a tip and had staked out a place where the
three men in a vehicle had gone to. The arrest and subsequent search
disclosed a set of scales, a bulk amount of marijuana totaling 714.28
grams, and a bulk amamt of hashish totaling 85.71 grams. claimant was
subsequently indicted by the State Grand Jury and appeared in Court an
sepbertber 9, 1981, prepared
to
try the case. She matter was plea
bargained and the charges against Claimant were reduced to "...kanwirgly
possess, an instrument, to wit: one Chorus Triple Bean: Balance Scale,
2610 gram
capacity, to
prepare a dangerous drug, other than marijuana,
for unlawful use." Claimant, on his entry of a guilty plea, was fined
$150 tax Court costs and other statutory Court Costs.
As a result of reading that
information in
the paper, as reported
on Septeorber 10, 1981, J. E. riery, Car man, brought charges againstclam resulting in the instant claim.
The transcript of the investigation fails
to
reflect any
prejudicial behavior by the Hearing Officer or prejudgment by the
Carrier against Claimant. Testimony vas brief and concise:
clad*enr
was armed by the New Boston Police along with three other men, they
ford a substantial amount of marijuana and hashish in the car together
with a scale used in the
process of
dividing up narcotics for subaequent
resale, and Claimant was able
to
plea bargain his case
to
a reduced
charge of
possession
of the scale
only, a
misdamamr notwithstanding.
Claivent's defense was that
tee pled guilty to
the charge
on
the
advice ®f his attorney,
Woo,
Claimant contends, advised him that his
pleading
guilty
to
the reduced charge would help him save his job with
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~;IqoB
` -4- lsaard 10.,. 31
his employer.
aganizatia~tede an 4wpassianed plea on Claimant's behalf pointing
out that there were three generaticrns of Claimant's family who served
honorably, and without incident, with the carrier for a total of 114
years of service. Organization pointed out that Claimant had undergone
a severe emotional stress, resulting in a neavws brea)odo*m, as a result
of the brealaup of his marriage. Organization contends that Claimant ha:
become dependent %pion prescription drugs, but through leis own initiative
was able to shake his dependency and was prepared
to
demonstrate his
reliability
to
his arployer.
All of those factors might well have been mitigating factors for
the
Carrier M
take into consideration in coming to a &-texmi.nation of
what would be an appropriate discipline. Notwithstanding, carrier chose
to dismiss Claimant.
Claimant was convicted of a most serious charge. It involved an
issue of moral twpitude, and, were we to substitute
our
judgment for
the
carrier's and
reconsider the discipline Imposed on the basis of the
arguments advanced on Claimant's behalf by his representatives, we
would, thus, be rbstitvting as ju8gaent for the Carrier's which is a
principle that the divisions arid boards
have lang
held repugnant.
accordingly, we are bard by the facts developed in the record
whicb clearly and succinctly establish that Claimant was
convicted
of a
crime that falls ®quarely within the parameters of the April 1, 1977
bulletin. 11e am find no
factors in this record that would permit
our
altering
the
results arrived at am the paroparty. 7herefaxe, we are
impelled to deny this claim.
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