Brotherhood of Maintenance of Way Employes

(Consolidated and Pennsylvania Federations)

and

Norfolk Southern Railway Company

Statement of Claim:

Claim on behalf of W. F. Maddox for reinstatement with seniority and alt other rights unimpaired and pay for all time lost as a result of his dismissal frmn service following a formal investigation on March 7, 2003, for conduct unbecoming an employee in shat on May 2, 2000, lie pled guilty to burglary with a firearm specification, a felony, in Common Please Court, Lucas County, Ohio.

(Carrier File: MW-PfE"f-03-04-SG -irk)

Upon the whale record and all tile evidence. after hearing, the Board finds that the parties herein are carrier and employee within, the. meaning of the Railway Labor Act, as amended, and this board is duly constituted by agreement and has jurisdiction of the parties acrd subject matter.

This award is based on the facts and circumstances of this particular case and shall net serve as a precedent in arty other case.

Claim disposed of as follows:

-['here is no dispute in the record that on May 2, 20(10, Claimant pled guilty in the Court of Common Please, Lucas County, Ohio, to burglary with a firearm specification. Accordingly, we field that Carrier proved the charge by substantial evidence.

The Organization contends that Carrier violated Rule 3_7ta) which provides, in relevant peat, "The investigation abaft be held within thirty (30) days of first knowledge of the offense." Although the guilty plea occurred on May 2, 2000, and dale investigation was not held until almost three years later, it is alsz.)appar:.nt front the, record that the General division En<=inset's first knowledge of the guilty plea came at the end of January ?003. Accordingly, we find that the investigation was timely.
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AwP We next consider the severity of the discipline imposed. Claimant pled guilty to burglary with a firearm specification. He was sentenced to two years in prison on the burglary conviction and era additional else year in prison an the firear-rn specification. This is an extremely serious offense drat generally warrants dismissal. Carrier's policy providing far such has been in effect and adhered to for a considerable period of time. Carrier cannel tic expected to maintain stash a convicted felon in its employ, as to do so would pace a significant risk to Carrier's operations and to the safety and well-being of Carrier's employees. See PLB 3791, Award No. 6; PLB 343, Award No. 68; PLB 4769, Award ?40. 45: PLB 1760, Award No. 154; PLB 4871, Award No. 46, p. Board should reduce discipline in such circumstances only under highly unusual arid extremely compelling circumstances.

Our review of the record convinces us that the instant case presents the very rare but highly compelling circumstances in which the penalty of dismissal is excessive. Claimant had twenty=three years of service. Claimant had entered Carrier's DARS program. It became apparent that Claimant mss not complying with the requirements of the DARS program and an investigation seas held in November 2000. rAt that investigation, it was revealed that Claimant was incarcerated. Aecardin<, to the General Division Engineer, it was agreed al that paint that it was not necessary to explore the details behind Claimant's incarceration. It appears from the record that the 1?rint<rry concern was whether Claimant was involved in a substance abase rehabilitation proaratrr in prison acceptable to the DARS program. Claimant continued in Carrier's employ with a medical hold because of his substance abuse rehabilitation, We find under the peculiar facts presented that Carrier's delay in invest=gating the reasons far Claimant's incarceration mitigates against the penalty of aisntissal.

T'urthexmore, General Division Engineer Barefoot testified that Claimant "was a gaol worker. E heel no problems with the m<rn. I got a lot of input from supervisors an his gang and they had no problems with Mr. Maddox, In fact I think as a worker he a lot of times dad things shave and beyond what he was you knave toad to do." Sizuitarly, Division Engineer Stump testified that ho considered Claimant "a pretty good worker." When asked if he believed Claimant could again be err asset to harrier, Division Engineer Stump opined, "If all the issues with DARS and the drugs

,

and that is worked out, if everything is clean then he could bean asset, yes.'

Thus, we face a long term employee who was regarded very positively by supervision and who's dismissal stemmed from an incarceration that Carrier was aware of for mare than two years before it investigated and tank action. Under these highly unusual circumstances, and without disturbing prior precedents that generally support dismissal of even long terin employees for sinriiar criminal convictions, sae conclude that dismissal eves excessive.

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Carrier is to return Claimant to service, subject to the I?AR6 program's terms, conditions and restrictions, with seniority unimpaired teat without compensation far time out of service.

Chairman and Neutral Member

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F. K. Gel lei-, Sr. D. L. Kerby
Organization Member Carrier Member

Issued at Chicago, Illinois, November 29, ?0C33.