BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

and

CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY



















FINDINGS:
 Claimant R. J. Humpal was employed by the Carrier as a machine operator.
 On April 24, 1989, the Carrier notified the Claimant to appear for a formal investigation in connection with the following charge:

After two postponements, the hearing took place on May 30, 1989. On June 2, 1989, the Carrier notified the Claimant that he was being dismissed from service for violation of Rule G effective that date. On July 24, 1989, the organization filed a

claim on claimant's behalf challenging the Carrier's decision to dismiss the Claimant, contending that the Carrier's ruling was not rendered in a timely fashion, rendering the discipline assessed the Claimant null and void; that the carrier had no right to test the Claimant's urine since he had been exonerated of the incident leading to the claimant's being required by the Carrier to undergo testing; and that the Carrier failed to prove a Rule G violation. Thereafter, the Carrier denied the organization's claim and reaffirmed its position claiming that the Claimant was in violation of Rule G and that the organization's claim lacks support from schedule rules and agreements. The parties being unable to resolve the issues, this matter came before this Board.
 With respect to the procedural issues raised by the organization, this Board finds them to be without merit.
 With respect to the question of whether or not there was probable cause to test the Claimant for illicit drugs or alcohol, this Board finds that there was because the Claimant was directly involved in the accident at issue. Claimant was employed as a machine operator and was a passenger on a Ballast Regulator that was involved in a collision. Although the Claimant may not have been personally responsible for the accident, he was not sufficiently unrelated to the accident to preclude him from the drug and alcohol testing which the Carrier requires after incidents of that kind.


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evidence and testimony in this case, and we find that there is sufficient evidence in the record to support the guilty finding. The Claimant was subjected to a urinalysis and, as a result, a metabolite of marijuana was found in his urine. The Carrier had sufficient grounds to find him guilty of a Rule G violation.
 Once this Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the type of discipline imposed. This Board will not set aside a carrier's imposition of discipline unless we find its action to have been unreasonable, arbitrary, or capricious.
 This Board has found, on numerous occasions in the past, that a Carrier has just cause to dismiss an employee for a Rule G violation, even on the first offense. The record in this case contains nothing upon which this Board can find that the Carrier's action was unreasonable, arbitrary, or capricious. Therefore, the claim will be denied. AWARD:

      Claim denied.


                      PETE R. EYERS

                      Neut al ember


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/ Carrier Member O anization Member

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LABOR MEMBER'S DISSENT

TO

SPECIAL BOARD OF ADJUSTMENT 924. AWARDS 149. 150 AND 151

(Referee Meyers)


The majority erroneously ruled on the procedural argument raised by the Organization when it held:


    "With respect to the procedural issues raised by the Organization, this Board finds them to be without merit. Although the Carrier admits that it did not mail the transcript to the General Chairman within the time limits required, that error is not sufficient to sustain the claim. The Claimant's rights were not at all affected by that delay, as he still had a right to appeal his dismissal to this Board."


The requirements of Rule 19 are clear and unambiguous and in pertinent part reads:


      "(a) *** Decision will be rendered within ten (10) calendar days after completion of hearing. ***


    (b) When discipline is administered, copy of the discipline notice and the transcript will be furnished the employe and the General Chairman. Divisions will issue transcripts to the General Chairman at the time the discipline notices are issued to the employe, that is, within 10 days of the hearing."


Prior to the inclusion of the last sentence of Rule 19(b) into the Agreement, the parties entered into a letter of Agreement involving the issuance of the transcript to the General Chairman. This Board, with another Referee as Chairman, considered that letter of Agreement and held:

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    "Section (b) specifically stipulates that a copy of the discipline notice and transcript will be furnished the employe and the General Chairman. The record also contains a letter Agreement between the authorized representatives of the parties dated February 21, 1980, and which reads in pertinent part:


        'You stated that you would advise me whether the cases could be disposed of on the basis that the divisions will issue transcripts to the General Chairman at the time the discipline notices are issued to the employe, that is, within ten days of the hearing, and it appears that the divisions will be able to comply with your request.'


    The record is clear that the transcript of the investigation that was conducted on November 3, 1982, was not furnished to the General Chairman within ten days of the hearing, as required by by (sic) the Letter Agreement of February 21, 1980.


    While we are always hesitant to dispose of claims or disputes on technicalities, where the language of an agreement is clear and unambiguous, we must apply it as written. We will sustain the claim for difference between trackman's rate and foreman's rate, where applicable, for the one-year period following reinstatement in May, 1983." (Award 20 of Special Board of Adjustment No. 924)


    Rule 19 was considered by another Board and another Referee


and held:

    "The record persuasively establishes that the Notice of Discipline was typed on Thursday, April 12, 1979, within the ten day limit. But the decision was, not mailed until Monday, April 16, 1979, apparently because of mail backlog in Carrier's office due to the Easter holidays. On those facts, the decision was 'rendered' for purposes of the ten day requirements of Rule 19 (a) when it was placed in the mail by Carrier. See Awards 3-12001 and 313219. The postage meter date on the envelope in which Carrier mailed the decision is April 16, 1979. Clearly, this is more than ten days from the completion of the hearing on April 4, 1979. We have on other occasions held that the time limits of Rule 19 are meaningful provisions which must be strictly enforced. See PLB 1844, Awards 19, 28, 58, and 62. We shall sustain the claim due to Carrier's violation of Rule 19(a), without

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      "reaching the merits." (Award 79 of Public Law Board No. 1844)


A third Board has considered Rule 19 and held:

      "*** The Carrier cannot justify delay in setting an investigation date when they have sufficient information and when the effect of the delay is to perfect their case against an employee. To do so would gut the rule of any meaning. The hearing officer at the hearing further justified the delay by stating it was necessary to have the Special Agent investigate Mr. Burns because of the 'seriousness' of the offense. Many offenses are serious and the parties were certainly aware of this when giving the Carrier up to 10 days to hold a hearing. Regardless of the seriousness of the offense, where the Carrier has 'sufficient information' to believe an offense is worthy of a disciplinary investigation they are obligated to act within the 10-day limit. It is further noted that a procedure for postponements once a hearing is scheduled is provided for in Rule 19.


      The burden on the Carrier is a heavy burden. Further, we subscribe to the description of this burden by Referee Eischen in Award 26, sera, when he stated:


          'Where, as here, Carrier avers that the hearing was held within ten calendar days of the ADME's knowledge of the alleged offense, then Carrier has the burden of proving that fact, as well as the additional burden of showing good reason for any delay in the ADME acquiring knowledge of the offense. The latter point must be a required burden of proof in such cases to vitiate the potential for unilateral manipulation of the negotiated time limits if the ADME is negligently or even intentionally kept in the dark about an alleged offense.'


    We must also consider Carrier's argument that the Claimant wasn't prejudiced in any way by the delay. This is similar to the 'de mini.mus' (sic) argument made in Award 62 of PLB 1844. It was stated:


          'The case comes to us on a procedural/timeliness issue stemming from the requirement of Rule 19 Discipline which reads as follows: "Decision will be rendered within ten (10) calendar days after completion of hearing". There is no getting around the fact that in this case the decision was rendered one day late, i.e. on the eleventh calendar

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        "day after the hearing. Carrier urges that this error is de minimis and should not invalidate the disciplinary action, but rather, at most, should result in a reduction of the penalty by the one day dereliction. In support of this approach Carrier cites Award 3-21289. Analysis of that decision persuades us that the approach taken therein was limited to the peculiar facts of that case and is without precedent value to us. The weight of authority favors the position of the Organization that time limits are to be construed strictly and that they are two-edged swords which cut equally whether to work a forfeiture against an employee or to invalidate action taken by the employer. See Awards 1-16366; 3-743; 3-2222; 3-21675; 3-21873; 321996, et al. Because of the patent violation of Rule 19 we must sustain the claim but in so doing we neither express nor imply any finding regarding the merits or lack thereof in the substantive claim.'


      In view of the fact the hearing was not held in compliance with the time limits of Rule 19, the claim must be sustained without regard to the merits." (Underscoring in original) (Award 3 of Public Law Board No. 2960)


When the Carrier admitted the time limit violation, the bottom line of the award should have read "Claim Sustained" periodl These three awards are palpably erroneous and of no precedential value.

                                  Respectfully submitted,


                                  D. Bart olomay

                                  Labo· Member