PUBLIC LAW BOARD NUMBER 3445
PARTIES TO DISPUTE

 STATEMENT OF CLAIJ
Award Number: 73

 Cake Number: 73

 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 " And
 SOUTHERN RAILWAY COMPANY

 Rogeg E. Johnsbp, Rt. 1, Box 63, Martin, GA 30557, allegedly charged
 .,and dismised from service for conduct unbecoming an employe. Employes request,he berestoted to~pervice with seniority and vacation rights



FINDINGS .

 Claimant entered the Carrier's, service an June 22,' 1981

 On August 18, 1987,,~Claimant was arrested and 'charged with possession

 of cocaine 'with intent to distribute, possession of marijuan.
 I with intent to:. distribute and possession of firearms during commission of a felony. The Carrier's Police learned of Claimant's arrest in September 1987 after the Credit Union manager reported to Claimant's supervisor (T. L. Hicks) Chat

 Claimant's car had been confiscated, and Hicks notified the Carrier's

 In September 1988; Claimant: advised Hicks that he had been placed on probation. The Carrier's Police contacted the local police and obtained a copy of Claimant's guilty plea. Claimant pleaded guilty to felony possession o£ cocaine with intent to distribute, misdemeanor possession of
 marijuana and,posses$ion of a firearm during commission of a felony. This

 information was received from local authorities on September 19, 1988.

 By letter 'dat~,d.$eptember 27~M,19.88, Claimant, was noiifiad to attend a formal investigation'on~l'charges~ti~'conduct~'.tinbecoming~'an~empIoyee in

 relation to his involvement with drugs and fixearms. That formal investiga
 tion was initially convened on Octobgr S, 1988, but Was'recess'ed until .,
 October 25, 1988 so ~that Claimant could appear with representation. By
 letter dated November 1,. 1988, Claimant was dismissed based on the evidence

 adduced at the investigation.

 The issue to be decided in this dispute is whether Claimant was dismissed for just cause under the Agreement; and if no't,' what' should the remedy be.

 Rule 40 sets forth the procedures for imposing discipline, and paragraph (a) provides:

 RULE 40. (a) An employee who has been in service 60 days or more will not be disciplined or dismissed without a fair and impartial investigation, which shall be held within ten (10) days of date o£ written notice to the employee that such investigation will be held. Such written notice, which will be given as promptly as circumstances will permit, will state the nature of the charge or charges against the employee.

 The position 'of the Carrier is that Claimant was dismissed for just cause. The Carrier maintains that it proved conclusively that Claimant was guilty of serious criminal acts involving both drugs and firearms. It cites Claimant's guilty plea as clear evidence of his~criminal activity. The Carrier contends that these serious criminal acts are conduct unbecoming an employee and warrant dismissal.



As to the procedural issue in this matter, the Carrier contends that Claimant was notified of the investigation in compliance with Rule 40 and that he received a fair and impartial hearing. The Carrier acknowledges that it took no disciplinary action until after it was cognizant of Claimant's guilty plea and its attendant conviction. It maintains that its- .~. `.

 first awareness of.the conviction came on September 19 and that since the __
 investigation was convened on October 5, it was within 10 days, thereby
 complying with the'rule. The Carrier argues, by implication, that it is the
conviction, not. the ,arrest, that was the unbecoming conduct.

    The p'os-ition of the Otganiz'a'tion is that Claimant was unjustly


dismissed.based on procedural-.defects and on, the merits.- - -- ---

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As to procedure, the Organization maintains that Claimant was not brought to'an investigation in compliance with Rule 40 and that he, therefore, should.bareinstated. ,The Organization contends that the Carrier first had knowledge of Claimant's`alleged offense in September 1987;-but did not convene an investigation until October 1988 -- more than a year.

    On the merits, the Organization contends that Claimant has paid his

debt to society and that his dismissal is unjust because it is overly,harsh .
 not in proportion to the offense. The Organization, does not deny~,the ·. ,- .
 occurance of the offense. -.- ·-

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    After review of the entire record, the Board finds that Claimant was


properly dismissed.
 The Carrier has established by substantive credible evidence in the record that Claimant pleaded guilty to several serious charged invo),'ving,

 both illegal drugs and firearms_,- The Organization acknowledges these facts,. It is well settled that involvement with illegal drugs has a direct and
 negative impact on,'the operations of the Carrier.' Such behavior is ,clearly ' beyond the acceptable bounds of behavior for an employee; it is unbecoming. The Carrier is within its rights to demand that its employees obey the civil law, especially when the law has implications for operational safety and . efficiency as do the drug and firearms laws. Dismissal was reasonable under the circymstances and was neither arbitrary, capricious nor discriminatory.

 As to the procedural question, the Organization s argument of timeliness is not supported by the facts. There are two,variables in this case: the act which is the conduct of which the Carrier must be cognizant and the dace of cognizance of the act triggering the investigation. It is the conviction (based-on the guilty plea) not the arrest, which constituted the unbecoming conduct in,this matter -- it is that act of which the Carrier, must be aware. The Carrier withheld investigation until a conviction in the matter; it is within its rights to do so, The investigation clearly occurred w~th.in.IO.,days of the Carrier's knowledge' of the conviction. It, is,,well sertleii that,the Carri,gt,,is''not 6quired to.invgptigate unta5. it ties' cognizance of the act which will trigger the investigation. The investiga-

 tion was held within the time, - ii~ni.ts set ,forth in Rule; 40.

 AWARD
                                                  3N~5 -~3


    -Claim denied.


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    Neutra mber 1

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          li,· 1 ,' i~ , ' _ Carr j,,er Member ·I


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                      Organization Member ,.


Date: ~8: G~G~, ~I90 . ,I-_

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