Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern and Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:














FINDINGS AND OPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and Employees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the dispute herein.

 The Claimant, Mr. Karl L. Minck, was hired by the Carrier in its Maintenance of Way Department in 1978. On August 5, 2003, he was working as a Welder. As such, he was the possessor of a Commercial Driver's License, and was therefore subject to random testing for the presence of alcohol or drugs, pursuant to Federal regulations.

 He was administered a random test on that date, and the result of that test disclosed the presence of cannabinoids in excess of the Federally prescribed confirmation cut-off level. Upon receiving the laboratory test results, the Carrier immediately removed the Claimant from service on August 14, 2003. Four days later, on August 18, 2003, he was served with a notice of charges and investigation by the Carrier's Division Engineer, which reads, in part, as follows:

p164244_322
 Public Law Board No. 4244 Award No. 322
 Case No. 329

In a separate communication dated August 14, 2003, to the Division Engineer with a copy to the Claimant, the Carrier's Manager Medical Support Services wrote, in part:

The investigation initially set for August 24, 2003, was postponed, at the request of the Claimant's union representative, to September 5, 2003. Documentary evidence was presented which confirmed the postponements and the positive drug test. The Claimant testified in his own behalf and presented no evidence to refute the fact of the positive test.

 The Claimant's representative raised a time limit objection at the opening of the investigation, and renewed it in his closing summary. He cited Rule 40.B. of the applicable Agreement, which reads:

The representative noted that the Claimant was withheld from service on August 14, 2003, and the investigation was initially set for August 24, 2003. He contends that August 24 was the eleventh day after his removal from service.

 On September 18, 2003, Roadmaster J. J. Palacios, the investigation's Conducting Officer, notified the Claimant that he was dismissed from the Carrier's employment for violation of its Policy on the Use of Alcohol and Drugs, for testing positive for a controlled substance for the second time within a ten-year period. Section 7.4 of that Policy was read into the record in the investigation:

plb4244 322 2
 Public Law Board No. 4244 Award No. 322
 Case No. 329

 The Organization promptly appealed the Roadmaster's disciplinary decision to the Carrier's Labor Relations Department. The appeal was there denied and the dispute therefore comes before this Board for a final and binding decision.

 The Organization argues that the Carrier failed to abide by the time limit in which to hold an investigation, prescribed in Agreement Rule 40.B., supra, and that the discipline is "extreme, unwarranted and unjustified," and "excessive in proportion to the charges."

 The Carrier responds that substantial evidence was developed to prove the charge, and denies any violation of the Agreement. It states that the investigation was scheduled for August 24, 2003, the tenth day after the date withheld from service.

 Clearly, the result of the random drug test was positive for cannabinoids, indicating the probable use of marijuana. The record shows that this was the Claimant's second positive test result in less than ten years. The only issues which remain in dispute are the time limits of Agreement Rule 40.B., and whether the penalty assessed is excessive.

 The Board believes the investigation was scheduled to be held within the time limits of Agreement Rule 40.B. The accepted practice in contract interpretation, in arbitration, and in the courts is to exclude the first day and include the last, when counting time limit rules and statutes. This can be illustrated by these rules of procedure:

 U.S. Department of Labor. Rules of Practice and Procedure. 29 CFR 6 18.4(a)


Federal Rules of Appellate Procedure. Rule 26

(1) Exclude the day of the act, event, or default that begins the period.
 (2) Exclude intermediate Saturdays, Sundays, and legal holidays when the
 period is less than 11 days, unless stated in calendar days.
 (3) Include the last day of the period unless it is a Saturday, Sunday, legal
 holiday
 plb4244_322 3
 Public Law Board No. 4244 Award No. 322
 Case No. 329

 Alabama Civil Judicial Rules and Procedures, Rule 6(a)


By these rules and statutes, the accepted count in the instant case would have worked out as follows, the "event" being the Claimant's removal from service pending investigation:

 August 14 15 16 17 18 19 20 21 22 23 24
 Event Day 1 Day 2 Day 3 Day 4 Day 5 Day 6 Day 7 Day 8 Day 9 Day 10

 In this regard, the decision in the National Railroad Adjustment Board's Third Division Award 19177, quoting from Second Division Award 3545, is instructive:



plb4244_322 4
 Public Law Board No. 4244 Award No. 322
 Case No. 329

 The Board holds that the time limit in Agreement Rule 40.B. was complied with. The evidence is clear and convincing that the Claimant tested positive for the second time within a tenyear period. His personal record of disciplinary events precludes the Board from granting the relief sought by the Organization. The claim is denied.


                      Q,a

                  Robert J. Irvin, Neutral Member


    & 4UL' Lcl~

~~-
 R. B. We li, Employe Member William L. Yeck, rier Member

 Date

 plb4244_322