Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13875
Docket No. 13768
05-2-05-2-20
The Second Division consisted of the regular members and in addition Referee
Raymond E. McAlpin when award was rendered.
(Michael J. Brossart
(BNSF Railway Company
STATEMENT OF CLAIM:
"After being laid off for 15 years BNSF was required by union rules
seniority agreements to notify me about a job opening in my division.
They didn't notify me although I have lived in the same town all my
life, paid property taxes and have always been listed in the phone
book. I learned from other BNSF employees that my job was open. I
went to the mechanical supervisor at the Grand Forks BNSF and he
denied that there was a job opening. A few weeks later I received a
certified letter from BNSF to bid on this job, I was later hired because
of my seniority.
I went to Altru Hospital Clinic and passed the RR DOT physical and
drug test. I was then hired by BNSF. Later in my employment with
BNSF I developed some health problems. I had hernia surgery, back
problems and respitory problems. These were all reported to BNBSF,
recorded and doctor excused.
After this happened I experienced many random drug test and other
intimidations and harassments when ever I had any health problems.
The random drug tests were lost, seals were broken and others were
contaminated causing inaccurate results. These tests resulted in me
being suspended. Later I returned to work and received back pay and
seniority. I also passed a drug test at Altru Clinic.
Form 1 Award No. 13875
Page 2 Docket No. 13768
05-2-05-2-20
On January 2, 2004 after one or two days of doctor excused time off, I
was notified to come in to work. I stated that I was still ill. I was told I
would be written up and maybe be fired if I did not report to work.
Although sick and taking Nytol with codeine and alcohol, I went to
work. I punched the time clock and was immediately told to take a
random drug test. I protested but complied. Then I immediately
punched out sick and went to Altru Clinic, where I got a DOT spec
drug test. I received an all negative result from the DOT drug test
later. I did this test at my expense because I believe the railroad drug
testing company was incompetent with test results, lost tests, broken
seals on previous tests.
The railroad claimed a positive drug test from me that same
afternoon. I was suspended then fired. I was not allowed to use my
vacation time in a 3 month period therefore I lost my job, 10 year
retirement and half of my unemployment.
I believe I was not treated in a fair or competent way. My private
DOT test was also not recognized. This test was done by the same
facility that administered the railroad hiring drug test. I have worked
for Burlington Northern Santa Fe Railroad Superior Mechanical
Division since March 1977. I am seeking full reinstatement and back
pay or at least to be allowed to reuse my vacation days in a manner so
which will allow me to earn my retirement."
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.
Form 1 Award No. 13875
Page 3 Docket No. 13768
05-2-05-2-20
Parties to said dispute were given due notice of hearing thereon.
The Claimant, Michael J. Brossart, was recalled to service with the Carrier
after fifteen (15) years. On June 27, 2002 the Claimant tested positive for a
controlled substance. He waived his right to an investigation and complied with the
Carrier's Employee Assistance program (EAP) Coordinator in order to be returned
to work. He was returned to work under a number of specific conditions and was
conditionally reinstated on January 17, 2003. On December 29, 2003 the Claimant
was asked to provide a certified sample. The Carrier took great care as there had
been some question of adulterated samples in the past. The sample tested positive
for the metabolite of marijuana. The Claimant was dismissed from service for
violations of his conditional reinstatement.
The individual Claimant argued that during his latest employment with the
Carrier he had developed some health problems. Subsequently, he experienced
many random drug tests and other intimidations and harassments regarding his
health problems. During January, 2004 he was ordered to take another random
drug test. He was suspended and discharged and not allowed to use his vacation
time and was not eligible for his retirement. The Claimant went to a private DOT
testing facility where he received a negative result. The Claimant did this because of
problems with previous tests. The Carrier did not consider this negative test.
The Claimant stated that he has a good work record. He is asking that the
Carrier consider his second test at a DOT testing facility which he has passed. He is
asking that he would be fully reinstated including back pay and allowed to complete
his retirement time.
The Carrier argued that the Claimant failed to meet his burden off proof
showing that the Carrier violated any of the rules cited in his claim to this Board.
The charges against the Claimant were proven and the discipline assessed was
warranted. The Claimant's dismissal from service was based on use of drugs which
violated the conditional reinstatement and the Carrier's policies. These were the
only issues considered on the property. Even if other issues can properly be
considered, nothing changes. In this case there can be no doubt that the urine tested
was that of the Claimant. Because he had been suspected of adulterating samples in
Form 1 Award No. 13875
Page 4 Docket No. 13768
05-2-05-2-20
the past, special care was taken and the Carrier provided for an observed test. The
voided urine was split into two samples and one sample was tested promptly. The
first sample tested positive for the THC metabolite by use of the GC/MS test.
Results of the second test reconfirmed the results of the first test. Since the samples
were tested twice, there is no concern that there was an improper reading. This is
the Claimant's second violation of Rule 1.5. Private tests by individuals are
generally not considered. Therefore, the dismissal was warranted and in line with
the Carrier's policies.
Upon complete review of the evidence, the Board finds that the individual in
this matter wrote a detailed submission. This was a special case since there had
been a question of adulterated samples in the past. The Carrier provided for an
observed sample gathering. The samples were split and both tested positive. This is
the second incident for this Claimant, plus the adulterated sample situation. The
Board finds no determinative procedural issues in this matter and no valid vacation
claim. The Carrier appropriately did not consider the Claimant's private test.
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 22nd day off December 2005.