Date ofhearing - September 25, 2000 Date ofaward-october

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1 NATIONAL MEDIATION BOARD PUBLIC LAW BOARD NO Jobn C. Fletcher, Cbairman & Neutral Member CeDe L. Shire, Carrier Member Don M. Rabs, Emplo)'ee Member BROTHERHOOD OF LOCOMOTIVE ENGINEERS BNSF SANTA FE, GENERAL COMMITTEE and BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Award No. 14 Case No. 14 Date ofhearing - September 25, 2000 Date ofaward-october Statement of the Issue The Chairman and Neutral Member, after review of the entire record, has determined that the issue before this Board is: FINDINGS: Was Carrier justified in dismissing Claimant Engineer F Aldepe-Fierro for alleged "immoral conduct" subsequent to his arrest and conviction for possession of controlled substances with intent to sell them? Public Law Board No. 6171, upon the whole record and all of the evidence. finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning ofthe Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute(s) herein. According to the record before this Board, Claimant Engineer E. Aldepe-Fierro was arrested on June 14, 1999 by Federal law enforcement authorities in Brewster County, Texas for illegal importation and possession of a controlled substance; specifically 13.6 pounds ofmarijuana concealed in a car battery. Claimant pled guilty to a charge of felony possession of a controlled substance with intent to distribute same, and was sentenced in accordance with an October 19, 1999 plea Agreement to 5 years' probation and a $6000 fme (Exhibit 8 to Transcript of investigation). Carrier aueges before this Board that it first learned of Claimant's arrest and subsequent plea on

2 PLB 617], Award No. 14 E. Aldcpe-Fierro - Discharge December 16, 1999, after which it commissioned Special Agents to look into the matter and confinn the authenticity of that infonnation through the Courts. The arrest and conviction were established to be correct and on December 20, 1999, Claimant was directed to attend a fonnal investigation in connection with the following charge: Anend investigation in the Burlington Northern Santa Fe, North Yard Depot, 83 South Pierce Street. Amarii/o, Texas, January 7, 2000 at 10:00 A.M with your representative and witness (es) ifdesired, for formal investigation to develop all facts and place responsibility, if any, in connection with your alleged felony conviction for possession of a controlled substance with the intent to distribute while employed with the Burlington Northern Santa Fe Railway'. This will also serve as notification that you are being withheldfrom service pending results ofthis investigation. " The investigation, postponed twice al the request of the Organization, was held on January 27, 2000, and Claimant was subsequently notified by letter dated February 14,2000, that he had been dismissed for violating General Operating Rules 1.6, 1.9, and Superintendent's Notice 191 (Employee Performance Accountability Policy Part III, Section A). According to the record, the Organization appealed Claimant's dismissal to Division Superintendent Shircliffon February 28, 2000, who responded, albeit negatively, in a timely manner on March 3, On March 13, 2000, Local Chairman Brantley notified Mr. Shircliffthat the Organization intended to proceed with its dispute to the next level under the controlling Agreement, and, thereafter, General Chainnan J. D. Mullen appealed Claimant's dismissal to Carrier's Assistant Vice President of Labor Relations, Milton Siege1e on March 20, Mr. Siegele denied Mr. Mullen's appeal in Claimant's behalfon June 2, 2000 who responded, inter alia, as follows: This is to advise you that we find you in violation of the "Time Limit Rule" ofthe Eastern and Westem Lines Schedule, which states in part: ~ the appeal is to be denied by the General Manager, he must notify the General Chairman, in writing, within sixty (60) days of the date of the appeal, giving the reasons for such declination.' Our appeal lener was dated March 20, 2000, and your denial letter was dated June 2, 2000, which totals seventy-four (74) days which violates the time limit rule, and should be handled in accordance with paragraph 6 which states: Page No.2

3 PLB 6171, Award No. ]4 E. Aldepc-Pierro - Discharge If there is a failure to comply with the time limit provision of this agreement by either party, the matter shall be considered closed, and settled accordingly, but this shall not be considered as a precedent or waiver of the contentions of either party for the handling of similar discipline cases. Before this Board, Carrier steadfastly argues that its "J 3-day time limit violation did not prejudice Claimant so as to justify overturning his dismissal" (Carrier submission at page 12), and offers!.hat its oversight was simply due to a change in filing systems at the precise time his appeal was under consideration on the property. It furl.her asserts, with support from a number of prior arbitration awards, that this Board should seriously consider the egregious nature of Claimant's felony conviction, along with its potential negative impact on the safety of men and equipment, before setting aside the instant discipline for its admitted, though "minor", contract violation. After a thorough review of the record, we are compelled to remind the parties that, however distasteful its duty at such times, this Board is bound (and sometimes limited) by basic tenets of arbitral authority. Simply stated, we are charged exclusively with applying the tenns and conditions of a controlling Agreement to any and all circumstances at issue, and making a subsequent, responsible determination as to whether or not a violation occurred. We find that such is the case here. The time limit rules cited above are nol only clear with respect to obligalion, bui stipulate outcome as well. The Board is obligated to apply the terms of an agreement reached in good faith. The Board does not have license to do anything more than consider the matter closed and settled. Anything different would be to rewrite the Agreement. It is the experience of the members ofthis Board that time limit rules like the one cited above are common, if not indeed standard in the industry. They function as the parties' "statute of limitations." As a natural result, any failure to follow proscribed time limits flaws the discipline when that failure is on the part of Carrier, and negates any appeal entitlements when suchfailure is on the part ofthe employee or the Organization. We remind both parties that when such breaches occur, neither is privileged to escape the consequences, even when the error is alleged to have been hannless. As Carrier's response to General Chairntan Mullen's appeal was undisputedly outside allowable time limits, we have no choice but to find in favor of the Organization without addressing the merits in this case. Claimant's discharge is therefore set aside, and Carrier is hereby directed to conditionally return him to service with all seniority rights unimpaired and compensation for time lost as set forth herein below: Claimant must satisfactorily pass a return-ta-work physical including a drug screen. NOTE: If Claimant fails this drug Page No.3

4 PLB 6171, Award No. 14 E, Aldcpe-Fierro - Discharge screen, the instant discipline will not be disturbed, and his claim in this case will be denied in its entirety. Claimant must, before returning to active duty, enter and fully participate in Carrier's Employee Assistance Program. Claimant must satisfactorily complete any recommended treatment as determined by Carrier's Assistance administrators. and all Employee Claimant shall submit, at Carrier's discretion, to unannounced, periodic drug tests for a period of five (S) years from the date of his reinstatement to active duty. Any drug test producing a positive result will constitute grounds for immediate dismissal. Any conviction for possession or trafficking in l'drugs 71 constitute grounds for immediate dismissal. will In making the above determination, we remind the Claimant and the Organization that this Board in no way condones Claimant's behavior, nor are we sympathetic to the substantive merits of its instant appeal. Claimant is advised that, were it not for Carrier's breach ofthe controlling Agreement with respect to time limits, the outcome in this case would have proven substantially more unfavorable to him. He is admonished to toe the mark in the future, for this Board would not hesitate to find as such under different circumstances. The Board retains jurisdiction of tbis matter for a period of five years from the date of Claimant is returned to service, for the purpose of administering and review of the conditions of his reinstatement. AWARD The issue before this Board: Was Carrier justified in dismissing Claimant Engineer E. Aldepe-Fierro for alleged llimmoral conduct" subsequent to his arrest and conviction for possession of controlled substances with intent to sell them?" Page No.4

5 PLB 6171, Award o. 14 E. AJdepe-Fierro - Discharge is answered in the negative, "No." Claim is sustained as set forth in the findings. The Board retains jurisdiction of this matter for a period of five years from the date Claimant is returned to service. ORDER Carrier is directed to comply with this Award and make all payments Claimant within sixty (60) days ofthe date indicated below. due John Co Flete~eutral Member ~~ Gene L. Shire, Carrier Member Dated at Mt. Prospect, lilinois, October 31, 2000 Page No.5