Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 12832
Docket No. 12803
95-2-93-2-1.49
The Second Division consisted of the regular members and in
addition Referee Robert L. Hicks when award was rendered.
(International Brotherhood of Electrical
( Workers
PARTIES TO DISPUTE:
(Chicago and North Western Transportation
( Company
STATEMENT OF CLAIM:
11(1)
That the Chicago and North Western
Transportation Company violated the Agreement,
effective December 1, 1985, in particular Rule
26, when they wrongfully dismissed Electrician
Dwight Bryant, on August 4, 1992, after an
investigation held July 28, 1992.
(2) That the Chicago and North Western
Transportation Company, herein after referred
to as Carrier, promptly reinstate Electrician
Dwight Bryant to service with all seniority
rights unimpaired and make him whole for all
lost wages and benefits lost, including but
not limited to vacation rights, insurance,
hospitalization, railroad retirement rights
and all monies lost account of Carrier's most
unjust action beginning April 2, 1992 and
continuing until Mr. Dwight Bryant is
reinstated."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employee 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 were given due notice of hearing
thereon.
Form 1 Award No. 12832
Page 2 Docket No. 12803
95-2-93-2-1.49
Claimant was recalled from furlough and failed the
return-to-work physical having tested positive for PCP, a
prohibited drug.
When offered the opportunity to enter a rehab program,
Claimant refused indicating he did not have a chemical dependency.
After he had provided a negative sample, Claimant was allowed to
return to service and did so on March 10, 1992. He did agree to
certain conditions, however, namely random testing for prohibited
chemicals.
On June 10, 1992, Claimant tested positive for cocaine (which
test was run twice as Claimant denied taking the drug).
Claimant was suspended from service pending results of an
Investigation which was held July 28, 1992. .
The charge was insubordination for his failure to comply with
the EAP counselors letter of March 5, 1992, wherein he was
instructed to remain drug free.
Claimant's representative went all out to defend Claimant,
demanding copies of various letters, a copy of the Rule "G" policy,
and a copy of the test results.
Carrier responded by furnishing a copy of the Rule "G" policy,
advised certain letters would be introduced at the Investigation
and that Claimant had been furnished a copy of the test results.
Carrier did introduce at the Investigation the documents it
said it would. The Organization protested Carriers failure to
furnish the required copies in advance of the Investigation arguing
it deprived them the opportunity to adequately prepare its defense.
The Organization's argument that the deprivation of requested
materials prejudiced Claimants rights to a fair and impartial
Investigation has to be denied. When asked at the conclusion of
the Investigation if they wanted...
"...more time ...for this investigation so that you can go
over the documents..."
that were entered; the organization responded:
"...the investigation... is over at this point and we
will allow it to continue. I just wanted protest in the
record..."
Form 1 Award No. 12832
Page 3 Docket No. 12803
95-2-93-2-149
Claimant was allowed to return to service under certain,
agreed to, conditions. He failed to abide with the agreement that
allowed his return. The Board can find no reason to overturn or
modify the discipline of dismissal imposed by the Carrier.
AWARD
Claim denied.
0 R D E R
This Board, after consideration of the dispute identified
above, hereby orders that an award favorable to the Claimant(s) not
be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 26th day of January 1995.