Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33609
Docket No. MW-34123
99-3-97-3-604
The Third Division consisted
of
the regular members and in addition Referee Ann
S. Kenis when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE
:
(Union Pacific Railroad Company
STATEMENT OF CLAIM
:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The dismissal
of
Mr. T. L. Atwood for alleged violation
of
Rule 1.6 in
connection with his alleged failure to comply with instructions given
by Manager Track Maintenance P. R. O'Kelley in his letter
of
February 26,1996 was without just and sufficient cause, on the basis
of
unproven charges and in violation
of
the Agreement (System File D250/1027337D).
(2) As a consequence
of
the violation referred to in Part (1) above, the
Claimant shall be reinstated to the Carrier's servicewith seniority and
all other rights unimpaired, his record shall be cleared
of
the charges
leveled against him and he shall be compensated for all wage loss
suffered beginning January 22,1996 until he is reinstated to service."
FINDINGS
:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, rinds 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. 33609
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Page 2 Docket No. MW-34123
99-3-97-3-604
Parties to said dispute were given due notice of hearing thereon.
The Claimant was dismissed from service following a May 29,1996 Investigation for
failing to comply with a conditional reinstatement directive. The record evidence shows
that on November 16, 1995, the Claimant took a return-to-work physical which included a
drug screen. On December 13, 1995, the Claimant was informed that his drug sample had
tested positive for illegal or unauthorized drugs, and he was medically disqualified from
returning to work. The Claimantwas also advised that, pursuant to the Carrier's Employee
Assistance Program (EAP), he would be afforded one further opportunity to be reemployed
provided he demonstrated his fitness for duty in accordance with various conditions. One
of those stated conditions was that he enroll in a personal rehabilitation program within 30
days.
A problem was discovered with respect to the specimen taken on November 16,1995
and so another drug test was administered on January 22,1996. Once again, the drug test
was positive for illegal or unauthorized drugs, and the Claimant was so notified on
February 26, 1996. Once again, the Claimant was notified that in order to return to the
Carrier's service he had to demonstrate his fitness for duty by complying with a number
Ifto
of conditions, one of them being that he enroll in the Carrier's EAP program within 30
days.
The Claimant disputed the drug test results, and requested that his specimen be
retested. The paperwork necessary to have the retest was sent to the Claimant on March
20, 1996 but the record shows that the Claimant did not follow through with the retest. He
testified at the Hearing that the drug testing done at the Carrier's directive was not reliable
or accurate because it was "fixed" and that the Carrier was intent on getting rid of him
because he had filed claims and won in the past.
On April 25,1996, the Carrier received a letter from the Manager of the EAR The
letter was admitted in evidence over the Organization's objection. It confirmed that the
Claimant had not had his sample retested. The Manager's letter further stated:
"Item number one in your letter of instructions for return to service stated:
You must enroll and begin a personal rehabilitation program in Union
Pacific's Employee Assistance within 30 days of the date of this
correspondence... Because [The Claimant] was contesting his positive drug
screen, he was given additional time (i.e. 30 days from receipt of the paper
work for a retest of his urine specimen) to become enrolled in a program with
,No
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Page 3
Award No. 33609
Docket No. MW-34123
99-3-97-3-604
Employee Assistance. That new 30 day time limit has expired and [The
Claimant] has failed to contact Employee Assistance or make new
arrangements with Health Services:'
Following receipt of the letter from the EAP Manager, the Carrier notified the
Claimant on May 3, 1996 to report for an Investigation on charges that he was
insubordinate when he failed to comply with the February 26, 1996 instructions to enroll
in the Carrier's EAP program.
At the Hearing, the Claimant testified that he attempted on several occasions to
enroll in the EAP. The Claimant stated that he spoke with the EAP Manager who informed
him that he needed to admit to having a drug or alcohol problem before he could participate
in the EAP. The Organization requested that the Manager be presented as a witness at the
Hearing, but the Carrier declined to do so, indicating that the EAP program relies heavily
on confidentiality and it was its policy not to have EAP employees testify at disciplinary
Investigations.
Instead, the Carrier presented the testimony of W. E. VanTrump, the Director of
Track Maintenance, who stated that he checked with the EAP Manager and was informed
that the Claimant had indeed contacted the EAP and been told that the program is for
individuals who are "willing to face up to their problem and admit it" According to
VanTrump, however, the EAP Manager told him that the issue of The Claimant's
enrollment in the EAP centered more around the fact that the Claimant indicated that he
was pursuing a retest of his drug sample.
In support of its position that the instant claim should be sustained, the Organization
advances various procedural objections which, it argues, demonstrate that the Claimant
was not afforded a fair and impartial Investigation. First, it contends that the Carrier
violated Rule 48 when it failed to level its charges within 30 calendar days from the date of
the occurrence at issue in this case. According to the Organization, the time limits for
bringing charges against the Claimant should have begun on the date the Carrier was
notified that the Claimant's drug test was positive. We disagree. Although the
Organization's contention might have merit if the Claimant had been charged with a Rule
violation for the use of illegal drugs, it must be remembered that in the instant case the
Claimant was charged with insubordination for failing to comply with instructions ordering
him to enroll in the EAP program. The record shows that the Manager of the EAP notified
the Carrier of the Claimant's failure to enroll in the program in a letter dated April 26,
1996. It was at that point that the Carrier "had knowledge of the occurrence to be
Form 1 Award No. 33609
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99-3-97-3-604
investigated," as the controlling language
of
Rule 48 specifies. The Notice
of
Investigation
was issued on May 3,1996 and the Investigation was held May 20,1996, well within the 30
day period provided by Rule 48. Accordingly, the Board rejects the contention that the
charges were not brought in a timely fashion.
The Organization has further argued that the Investigation was less than fair; that
the Hearing Officer prejudged the Claimant's guilt and did not fully review or consider the
evidence before rendering his decision. We have carefully reviewed the record in its
entirety and find that the Organization's contentions are without merit. The Claimant was
granted all contractual rights to a fair and impartial Investigation. The Notice
of
Investigation clearly provided the necessary information to enable him to present his
defense. Moreover, the Claimant was present at the Hearing with his Representative and
was given the opportunity to cross-examine witnesses and produce evidence. Equally
important, we find no basis from which to conclude that the conduct
of
the Hearing Officer
failed to meet the contractual standards negotiated by the parties or prejudiced the
Claimant's right to a full hearing. We, therefore, reject the Organization's contention that
the Claimant's procedural rights were compromised.
The more difficult question in this case is the significance
of
the fact that the
Manager
of
the EAP program was not presented as a witness at the Hearing. The
Organization has characterized his absence as a due process issue, and has maintained that
this was a witness within the Carrier's control whose testimony was necessary to shed light
on the series
of
events which led to the Claimant's termination. The Organization objects
to the introduction
of
the EAP Manager's letter as hearsay and argues that such evidence
from an absent witness cannot be relied upon by the Carrier as the basis for proving its case
by substantial evidence.
It would appear that, from an evidentiary standpoint, the absence
of
the EAP
Manager presents more
of
a problem for the Carrier than for the Organization. While we
understand that the very laudable purpose and goal
of
the EAP program would be
undermined by requiring the presence
of
EAP employees as witnesses at investigatory
hearings, the record as it stands in the instant case is not sufficient to meet the Carrier's
evidentiary burden
of
establishing that the Claimant was indeed insubordinate. What we
have here is a letter from the EAP Manager stating that the Claimant did not contact the
EAP office after being given additional time to do so, and therefore be was not in low
compliance with the Carrier's instructions. However, the direct testimony
of
the Claimant,
which was corroborated by the Carrier's own witness, Mr. Van Trump, contradicted the
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Award No. 33609
Docket No. MW-34123
99-3-97-3-604
letter and established that the Claimant had in fact contacted the EAP Manager and spoken
to him about enrolling in the program.
As in any disciplinary case involving insubordination, there must be evidence of a
refusal by the employee to obey an order that is within the legitimate scope of
management's authority. There is no question, in this Board's view, that the instructions
contained in the letter of February 26, 1996 were reasonable and proper given the
Claimant's positivedrugtestresults. Whatwedonotknow,however,arethecircumstances
surrounding the Claimant's failed attempt to enroll in the EAR Without additional
evidence, there is no basis to reasonably conclude that the Claimant failed or refused to
comply with the Carrier instructions.
The proper remedy in this case is to restore the status quo ante; that is, to have the
Claimant placed in the position he would have been in had it not been for the improper
termination. The Claimant was out of service at the time of the events leading to his
dismissal, and therefore, notwithstanding the Organization's claim to the contrary, he is not
entitled to back wages. His reinstatement is conditioned upon his completion of the
Carrier's instructions for returning to service, including his enrollment and successful
completion of a rehabilitation program in the Carrier's EAR
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimants) be made. The Carrier is ordered to make the Award
effective on or before 30 days following the postmark date the Award is transmitted to the
parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of November 1999.
.i
NEW