Award No.
-3-5
Case No. 37
Public Law Board No. 3794
PARTIES Brotherhood of Maintenance of Way Employes
DISPUTE: and
CSX Transportation, Inc.
STATEMENT The dismissal of Section Foreman M. W. Kinsey was
OF
CLAIM: without just cause and he shall be reinstated
with seniority and other rights unimpaired and
compensated forall wage loss suffered.
FINDINGS: Claimant was dismissed from Carrier's service on
May 10, 1985. He had last performed compensable
service in may 1984 and was on inactive status
from that time until his dismissal.
On January 16, 1985 claimant was arrested by the
Jacksonville City Police Department and charged with possession
of a controlled substance, to wit, cocaine. He appeared before
Circuit Court Judge Olliff on Friday, March 29, 1985 and entered
a plea of Nolo Contendere. Adjudication was withheld and claim
ant was ordered to pay $500 in court costs. On May 3, 1985, upon
claimant's petition, the Circuit Court, Fourth Judicial Circuit,
in and for Duval County, Florida, entered an Order sealing the
records of criminal history pertaining to claimant's arrest on
January 16, 1985, the charge against him and the disposition
thereof.
-2-
37~ - 3s
1
This Board is not in a sound position to substitute
its judgment for that of Carrier in this case. Claimant did not,
as a matter of substance, contest the allegation that he was in
possession of cocaine on January 16, 1985. It was not unreasonable in the circumstances for Carrier to question claimant's dependability and judgment and to decide that it did not wish to entrust railroad responsibilities to him, even though he had a record -
of fifteen years good service in that industry. The fact that he .
was not on duty at the time of the incident is not relevant when
his conduct exhibited a lack of qualities reasonably requested
by Carrier for employment.
We find no merit in Petitioner's contention that
the claim must nevertheless be sustained since Carrier failed to
prefer charges against claimant until April 9, 1985 and was aware
of claimant's arrest- on January 18, 1985. Petitioner emphasizes
that Rule 39 Section 7 prescribes that charges must be preferred -
"within ten days of the date violation becomes known to Management."
Petitioner's time limit point lacks merit. The
Court proceedings were not held until March 29, 1985, a Friday,
and there is no showing that any responsible official of Carrier
was aware of the entire situation until the following Monday,
April 1.
_ riVED~ rhop(L~. I~
1987.
4°'~·:
Adopted at Jacksonville, Florida,
' Harol . Weston, Chairman
Carrier Member Employee Member