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. 3
(a) Carrier's dismissal of Claimant K. C. Slayton 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 Slayton 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, K. C. Slayton, 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,
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
By letter dated August 2, 1985, the Carrier further informed the
Claimant that:
...you are also being dismissed from the service
of the carrier for being insubordinate to a Company
Officer, by leaving company property without
authorization, after having been directed to remain
at the work site at 1640 hours by the Company
Officer, on July 18, 1985, at M. P. 14.90/Palmer
Subdivision, Norwich, Connecticut.
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 working on a track
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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
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. In addition, Carrier concluded that the Claimant was
guilty of insubordination on July
is
for not having waited, as
directed by Chief of Police Ovitt, for questioning.
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 be sustained in
part.
There exists some doubt concerning whether the Claimant was
actually smoking marijuana while on duty on the day in question,
July 18, 1985. While the Board does not doubt that those
conducting the surveillance for the Carrier believed that the
Claimant was in fact guilty of this alleged offense, nonetheless
the possibility of error or mistake exists, as there were a
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`0/26-3
number of employees under surveillance at the same time. In
addition, the Claimant's use of marijuana at work was not, as
with other employees terminated for the events of July 18, 1985,
unequivocally confirmed either by his admission or the statements
of other employees. The Board has further concluded, however,
that while some doubt concerning the Claimant's guilt exists,
there is good reason to also question his claim of innocence.
Statements of other employees make clear that the Claimant was
a user of marijuana away from the workplace on other occasions.
After carefully considering these circumstances, along with
arguments of insubordination raised by the Carrier and questions
of investigative and procedural irregularities raised by the
Organization, the Board has concluded that the proper outcome of
this case is that the Claimant be reinstated with full seniority
but without back pay. Needless to say, the Claimant is placed on
notice that use of narcotics and/or alcohol at work is a most
serious offense, and that any future confirmed violation of rules
pertaining to such use will not be tolerated.
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141426-3
AWARD
Claim sustained in part. Claimant reinstated with full
seniority but without back pay.
l ._ ~c-~
W. E. LA RUE, J LCH,
Organization Member 4rxxer Member
l~Z /g
S. E. BUCHHEIT,
Neutral Member
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