Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11978
SECOND DIVISION Docket No. 11717
91-2-88-2-215
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM:
1. Appeal of dismissal from service of Electrician F. Mowbray by the
National Railroad Passenger Corporation effective April 8, 1988.
FINDINGS:
The Second Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was employed by the Carrier as an Electrician at its
Wilmington, Delaware, Maintenance Facility.
On January 14, 1988, the Carrier notified the Claimant to attend a
formal Investigation in connection with the following charge:
"Violation of Rule G of the N.R.P.C. Rules of Conduct
which reads: Employees subject to duty, reporting
for duty, or while on duty, are prohibited from
possessing, using, or being under the influence of
alcoholic beverages, intoxicants, narcotics, or other
mood changing substances including medications whose
use may cause drowsiness or impair the employee's
responsiveness.
Violation of that part of PERS 39 which prescribes
adherence to the aftercare plan determined by the EAP
Counselor.
Specification: That your drug/alcohol testing on
December 16, 1987, proved to be positive."
Form 1 Award No. 11978
Page 2 Docket No. 11717
91-2-88-2-215
After one postponement, the Hearing took place on February 5, 1988 and continued on March 25, 1988. On April 7, 1988, the Carrier notified the Claimant
that he had been found guilty of the charge and was assessed discipline of
dismissal. Thereafter, the Organization filed a Claim on Claimant's behalf,
challenging his dismissal.
This Board has reviewed the evidence and testimony in this case and
we find that the procedural arguments raised by the Organization are without
merit.
First of all, this Board and other Boards have found on several
occasions in the past that in a Rule G waiver situation when the employee is
found in violation of the waiver agreement because he had drugs or alcohol in
his system, an investigation is not even required. This Board has found that
Rule G waivers are self-executing agreements, and therefore, if it is proven
that the Claimant has not lived up to his part of the bargain and has been
found to have drugs or alcohol in his system, he can be returned to discharge
status without the necessity of an investigation.
Moreover, in the case at hand, the record reveals that although the
Investigation that was held was a few days late because of several postponements and other matters, the Claimant was not prejudiced as a result of the
delay in the Investigation. This Board has held on several occasions in the
past that technical violations in the initial scheduling of an investigation
will not necessarily result in the reinstatement of the terminated employee.
With respect to the merits, the record is absolutely clear that the
Claimant was in violation of his waiver agreement when his urinalysis came up
positive for cocaine on his return-to-work physical. That result was a clear
violation of his Rule G waiver agreement and authorized the Carrier to reinstate him to discharge status.
This Board cannot find that the action taken by the Carrier was
unreasonable, arbitrary, or capricious. Therefore, the Claim will be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. a -Executive Secretary
Dated at Chicago, Illinois, this 16th day of January 1991.