Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13712
Docket No. 13573
03-2-00-2-55
The Second Division consisted of the regular members and in addition Referee
Robert Richter when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Canadian Pacific Railway/Soo Line Railroad Company
STATEMENT OF CLAIM:
°°1. That in violation of the controlling Agreement, Communications
Maintainer J. K. Martinovich was unjustly dismissed from the
service of the Canadian Pacific Railway (Soo Line Railroad
District) following an investigation held on March 10, 1999.
2. That the investigation held on March 10, 1999 was not a fair and
impartial investigation under the terms required by the rules of the
current Agreement.
3. That accordingly, the Canadian Pacific Railway (Soo Line Railroad
District) be directed to return J. K Martinovich to its service with
restoration of all lost wages, rights, benefits and privileges which
were adversely affected by the unjust removal from service and
dismissal. In addition, that record of this matter be removed from
his personal record."
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.
Form 1 Award No. 13712
Page 2 Docket No. 13573
03-2-00-2-55
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
On April 8,1999 the Carrier dismissed the Claimant from its service. As a result
of an Investigation held on March 23,1999 the Carrier found that the Claimant refused
to take a FRA mandated drug test on March 1, 1999. Under the FRA regulations a
refusal to take a drug test is treated as a positive test.
On March 1,1999 the Company was notified that the Claimant had to take a FRA
mandated drug test. The Claimant was so notified. The Carrier usually tests its
employees at the Harvey, North Dakota, Yard Office, but the Claimant refused to take
the test because it was an invasion
of
his privacy. However, the Claimant and the Road
Foreman agreed to do the testing at the Central Dakota Physicians Clinic in Harvey.
Upon arrival at the Clinic the Claimant said, "This is bull****. I'm not having anything
to do with it." The Claimant then walked out
of
the clinic.
The Organization argues that the Claimant never said he refused to take the test.
However, his actions speak louder than his words. It is clear that the Claimant did not
want to take the test; his actions confirmed his refusal.
The Claimant has had a previous incident involving the use
of
drugs. The
Claimant elected to take advantage
of
the Carrier's By-Pass Agreement rather than
discipline.
The Carrier has met its burden in proving the Claimant violated its Rules
pertaining to the use
of
drugs. There is no basis to overturn the action
of
the Carrier
in this case.
AWARD
Claim denied.
Form 1 Award No. 13712
Page 3 Docket No. 13573
03-2-00-2-55
ORDER
This Board, after consideration ofthe 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 20th day of March 2003.