PUBLIC LAW BOARD NO. 4426
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES
"Organization"
VS.
CENTRAL VERMONT RAILWAY, INC.
"Carrier"
STATEMENT OF CLAIM:
Claim of the Brotherhood that:
Award No. 1
(a) Carrier's dismissal of Claimant D. M. Poissant was
arbitrary and capricious, being based upon vague and
unproven charges, at a hearing which was not held in a
timely manner.
(b) Carrier shall restore Claimant Poissant to service,
with full seniority and vacation benefits, and compensate
Claimant for all lost wages, including overtime, as
provided for in Rule 27-A of the Scheduled Agreement.
OPINION OF THE BOARD
Claimant, D. M. Poissant, was dismissed by letter of July
19, 1985, which stated as follows:
This is to advise you that you are dismissed from the
service of the Company for violation of "G" of the UCOR.
"The use of intoxicants or narcotics by
employees subject to duty, or their possession
or use while on duty, is prohibited."
Also for violation of Rule 3000 of the Central Vermont
Railway Safety Rules, which states:'
"The use of intoxicants or narcotics by
employees subject to duty, or their possession,
~14Z~- I
or use while on duty, is prohibited."
Also, for violation of Rule 3(a) and 3(b) of Central
Vermont General Rules for Employees Not Otherwise Subject
to the Rules for Conducting Transportation:
"3(a) Employees use or possession of
intoxicants or narcotics while on duty or while
on company property is prohibited."
"3(b) Employees shall not report for nor be on
duty, at any time, under the influence of
intoxicants or any other substance whatsoever
(including those prescribed for them for
medical reasons) that will in any way adversely
affect their alertness, coordination, reaction,
response or ability to work properly or
safely."
Upon being notified of his dismissal, Claimant requested a
hearing, which was held on August 14, 1985. On August 22, 1985,
Carrier informed Claimant by certified mail that his dismissal
was confirmed. Appeal was made through various levels of the
grievance procedure, and was declined at all levels. The hearing
before this Board took place on February 29, 1988. Claimant was
informed of the hearing before this Board by certified mail, but
he did not appear.
Events triggering the Claimant's discharge took place on
July 18, 1985. On that day, the Claimant was foreman of a track
gang consisting of seven members. The gang was secretly observed
between the hours of 0900 and 1640 by the Carrier's Chief of
Police, J. B. Ovitt, and a private investigator. The Carrier
engaged in this surveillance because of information received
anonymously concerning alleged misconduct by the crew. As a
result of activities allegedly observed by Ovitt and the
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7
.o
investigator on July 18, and information obtained in the
resulting investigation, the Carrier believed that the Claimant
had broken the above quoted Rules by smoking marijuana while on
duty, purchasing and drinking beer while on duty, and
encouraging others to drink by announcing that beer was in a
truck.
The Carrier contends that the allegations against the
Claimant are supported by substantial evidence in the record and
that the claim should therefore be dismissed. The Organization
maintains that the Claimant is not guilty as charged and that the
Carrier committed numerous investigative and procedural errors
that warrant setting aside the discipline imposed.
The Board has determined that the claim must be denied.
The record contains ample evidence to establish that the
Claimant is guilty as charged. The claimant's offenses were
particularly inappropriate, as he was a foreman responsible for
ensuring that the track gang conducted itself in a responsible
manner. There are no arguments of mitigation that can
successfully be raised on the Claimant's behalf. In these
circumstances, the Carrier committed no investigative or
procedural errors that warrant setting aside the discipline
imposed. Accordingly, despite the organization's strenuous
arguments, the claim must be denied.
3
AWARD
Claim denied.
L9___
W. E. LA RUE,
Organization Member
J, ELCH,
C ri r Member
S. E. BUCHHEIT,
Neutral Member