PUBLIC LAW BOARD NO. 6394
Award No. 23
Parties to Dispute:
Brotherhood of Maintenance of Way Employes
(Consolidated and Pennsylvania Federations)
and
Norfolk Southern Railway Company
Statement of CJahn:
Claim on behalf of L. L?. Root fern reinstatement with seniority and all other rights
unimpaired and pay for all tome lost as a result of leis dismissal front service
following a forma) investigation on October 21, 200
1,
for conduct unbecoming an
employee and violation of the Company's Policy on Alcohol and Drugs in that on
September S, 2003. he plod guilty to attempted possession with intent to deliver
tnetJaamphctatzaines, a felony, in Jackson County Court, Jackson, Michigan (Case
No. 03-000275-F·F-1).
(Carrier File: MST-D>?AR-03-20-LM -286j
Upon the whole retard and all the evidence, after hearing, the Board finds that the parties herein
are carrier and employee within the nta:araing of the Railway Lobar Act, as amended, and this
board is daily constituted by agreement and bras jurisdiction of the parties and subject matter.
'1 his award is based on the facts and circumstances of this particular case and shall not serve as tc
precedent in any other case.
CJaitrr disposed of as fclJows.
On February 26, 2003, a search warrant was executed at Claimant's residence, following which
Claimant was arrested on felony narcotics and firearms chargcs, On Septernber -5. 2003'
Claimant pied guilty to one taunt of attempted possession with intent to deliver ruetharnphetimes,
Sentencing -was scheduled for November 13, 2003,
By letter dated September 15, 2003, Carrier notified Claimant to report far an investigation on
September 29, 2003. The notice charged Claimant with conduct unbecoming an employee and
violation of Carrier's Policy an Alcohol and Drugs m light of the guilty plea. The investi-·ation
eras postponed three times at the
Organization's
request and rescheduled for October 31, 2003.
On October 31, 2003, Claimant did not appear. The Assistant Genera) Chairman did appear and
requested a further postponement. When Carrier denied the reddest, the Assistant General
Chairman left the hearing which proceeded in absentia.
'oho Organization
contends
iltat Carrier denied Claimant's due process rights by proceeding in
absentia. The Organization nibi-nitted a utter from Claimant's doctor attesting that Claimant had
` Rd
Hepatitis C and cirrhosis, had undergone certain surgeries and would have to under-go additional
surgeries, and that Claimant was unable to work, attend school or training due to his inability to
function properly, and opt=ring that it was extremely unlikely that Claimant's health would
improve sufficiently to enable him to perform his jab. Carrier submitted the letter to its Associate
Medical Director who opined that Claimant was medically fit to attend the investigation.
The Organization attacks the Associate
Medical
Director's assessment an the ground that she
never examined Claimant, However, Carrier medical personnel routinely evaluate claims of
medical fitness or the lack thereof based an documentation submitted. We note that the letter
from Claimant's doctor indicated that Claimant was not medically fit to perform his duties, attend
school or training, but was silent as to Claimant's fitness to attend a
hearing.
When the hearing
officer denied the
Organization's
request for further postponement, the Assistant General
Chairman did not seek leave to provide supplemental medical evidence; instead lie simply left the
hearing. Under these circumstances, we cannot say that Carrier acted contrary to the Agreement
by proceeding in absentia.
The record reflects that Claimant pled guilty to a felony narcotics violation. As we stated under
comparable circumstances in award No. 19:
This is an extremely serious offense that generally warrants dismissal. Carrier's policy
providing far such bets been in effect and adhered !<r for a consiiferatblc period of time.
Carrier cannot be expected to maintain such a convicted felon tar its employ, as to do so
would pose a si;rnificant risk to Carrier'-,
operations
and to the safety and well-being of
Carrier's employees, See F'LB p'79 I ,Award No. 6: PUB 3443, Award No. 68w PLl3 4769,
Award No, 45; PLB 1'617, Award No. 154, PLB 4851, Award ydo. 46. A Board should
reduce discipline tat such circumstances only underlaighly unusual acrd extremely
compelling circutristmces.
We
recognize
that Claimant's seniority dates from 1978 and ccrrtsiclet- it very unfortunate that
Claimant chose to jeopardize such a long-term career by his conduct- however, the record does
exert contain any evidence of highly unusual end extremely compellim; circumstances such as
thane present in Award loco. 19 which would render the penalty of dismissal arbitrary, Capricious
or excessive. Accordingly, the claim must be denied.
:',~,"~'",F' ,~'
.'~"~"~
,/i1'i yn~...
M. H. Malin
Chairman aced Neutral Member
E .
f . ~ ,~
P. K. Geller, Sr. D. L. Kerby
Organization Member Carrier Member
Issued at Chicago, Tllinais, October 19, 20Cs4.