Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13720
Docket No. 13619
03-2-01-2-24
The Second Division consisted of the regular members and in addition Referee
Nancy F. Eischen when award was rendered.
(Brotherhood Railway Carmen Division
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway. Company
STATEMENT OF CLAIM:
"Claim of the Committee of the Union that:
1. The Duluth, Missabe and Iron Range Railroad Company violated
the terms of our current Agreement, in particular Rule 31 of the
Duluth, Missabe and Iron Range Railway Agreement, when they
arbitrarily and unjustly dismissed Proctor, Minnesota Carman
Peter R. Brose without first holding an investigation.
2. That; accordingly, the Duluth, Missabe and Iron Range Railroad
Company be directed to return Carman Peter R. Brose to active
service with compensation for eight (8) hours pay for each workday
he was held out of service, commencing June 16, 2000 through and
including March 1, 2001 which represents all time lost until his
passing. We also claim the following:
1. Made whole for all vacation rights;
2. Made whole for all health, welfare and insurance benefits;
3. Made whole for pension benefits including railroad
retirement and unemployment insurance;
4. Made whole for any other benefits he would have earned
during the time he was out of service;
5. Made whole for all wages, lump sum payments, general wage
increases and cost-of-living adjustments, resulting from
current negotiations on the National Contract;
6. Paid for all overtime hours he was deprived of during his
suspension;
7. All correspondence and record of the dismissal, be removed
from his personal record and file."
Form 1 Award No. 13720
Page 2 Docket No. 13619
03-2-01-2-24
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.
On January 4, 1999, the Carrier sent the Claimant the following letter:
"This letter is to confirm our recent conversations concerning the
possibility of your return to service as a Carman for the DM&IR. General
Manager, Mr. John C. Pranaitis, has given his approval to schedule you
into the Gateway Rehabilitation Program. This is necessary account your
current status, off work since December 4, 1997 because you failed a
return to work physical.
I think it is necessary to review your employment record at this time. On
November 19, 1996 you were evaluated and entered a rehabilitation
program with Gateway. On December 4, 1996 you finished an in patient
program and the next day began the out patient program. On January 8,
1997 you were removed from service per the Director of Medical Services;
instructed that you must contact Jean Abervold at Gateway immediately.
In a letter dated February 13,1997 certain conditions listed what you must
do, prior to your return to service. On April 24, 1997 you again entered
a program at Miller Dwan. On June 30,1997 a letter from Gateway stated
that you were OK to return to service. After a meeting with Chuck Voss,
you were given a return to work physical, including a Drug and Alcohol
test on July 2, 1997. You returned to service on July 9, 1997 and on
August 4, 1997 you were notified by Gateway that you must be in a
program for twenty-six weeks. On October 17, 1997 you were advised by
myself, in a letter that we had been informed by Gateway that you were
missing mandated sessions and suggested that you fully commit yourself to
the program. On October 20, 1997 you left my office absenting yourself
from work solely for the purpose of re-entering a EAP Program. On
November 20, 1997 you were advised you were absent without permission
and told to report for a return to work physical set up on December 4,
1997. Since then, you have been off duty, unfit for service.
Form 1 Award No. 13720
Page 3 Docket No. 13619
03-2-01-2-24
In light
of
all
of
the above it is necessary that you now agree to a last
chance contract prior to your admittance to a mandated Gateway
Program. It is understood and agreed that based on your non-compliance
with mandated programs, your admittance to yet another Gateway
Program and subsequent reinstatement to service will be subject to the
following conditions:
1. You will promptly contact Gateway Rehabilitation Center to
schedule and undergo a complete evaluation and must
successfully complete all treatment and counseling as
recommended.
2. You will authorize Gateway and whoever else you may be
referred to by Gateway, to release all records and
recommendations pertaining to your treatment and
prescribed program
of
follow-up treatment and/or counseling
to Transtar's Director
of
Medical Services.
3. Upon notification by the Employee Assistance Program
Administrator to Transtar's Director
of
Medical Services,
that you have completed your recommended treatment
program and that your condition will allow you to return to
work, you will (subject to a DMIR return to work physical
examination, including alcohol and drug test) be reinstated
to service with seniority unimpaired, but without pay for any
lost time.
4. Your employment status will be considered conditional for a
three-year period from the date
of
such reinstatement to
service. While in this conditional status you shall:
A. Continue to follow any and all designated
continuing care treatment program.
B. Present written documentation to the
Superintendent-Car Department, DMIR that
you are complying with the prescribed plan
of
treatment by the fifteenth day
of
each month
while actively participating in such designated
program.
C. Your continued employment is contingent not
only on successful completion
of
treatment but
Form 1 Award No. 13720
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03-2-01-2-24
also your total compliance to our Drug and
Alcohol Policy.
D. Submit to random drug and/or alcohol testing
at any time, at the discretion of management.
Furthermore, it is understood and agreed that any failure by you to fulfill
each and every condition set forth above will constitute a breach of this
agreement which will result in your dismissal."
On January 5,1999, the Claimant signed the Agreement noted supra. Thereafter,
on June 16, 2000, the Claimant was subject to a random alcohol test the results of which
were positive for alcohol. Per the conditions set forth in the Claimant's "last chance"
Agreement, he was dismissed from service.
The Organization protested the Carrier's decision to dismiss the Claimant,
maintaining that Rule 31(A) had been violated when the Claimant was dismissed without
an Investigation. The Carrier denied the claim, advising the Organization that the
Claimant had been working pursuant to the terms
of
the January 1999 "last chance"
Agreement, and that the Claimant's positive test for alcohol on June 16, 2000 violated
the specific conditions
of
same.
As noted above, the Claimant signed a "last chance" leniency reinstatement
Agreement, which summarized his inability to refrain from abusing alcohol. The record
demonstrates that the Claimant had worked very little since he entered rehabilitation
in November 1996, and, after working the first few days in January, the Claimant
missed the first six months
of
work in 1997. The record further demonstrates that the
Claimant did not work a single day from October 20, 1997 until he reentered
rehabilitation for the third time and signed the above quoted "last chance" Agreement
dated January 4, 1999. The Carrier, clearly out
of
leniency rather than obligation,
restored the Claimant to service on a last chance basis and agreed to pay the cost
of
his
participation in a rehabilitation program for the third time. Unfortunately, those efforts
were for nought.
The terms
of
the leniency reinstatement Agreement are standard. The final
paragraph reads:
"Furthermore, it is understood and agreed that any failure by you to fulfill
each and every condition set forth above will constitute a breach
of
this
agreement which will result in you dismissal."
By the specific terms of the Agreement, the dismissal provision is self-enforcing.
Sadly, the Claimant was unable to adhere to the provisions set forth in the January 4,
1999 Agreement that he voluntarily signed. Therefore, we do not find the Carrier's
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03-2-01-2-24
imposition
of
the discipline
of
dismissal to be unduly harsh or otherwise inappropriate
in the circumstances.
AWARD
Claim denied.
ORDER
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 10th day
of
June 2003.