The Third Division consisted of the regular members and in addition Referee Nancy F. Eischen when award was rendered.
The Third 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.
By letter dated November 26 the Claimant was directed to report for a December 9 formal Investigation in connection with his alleged violation of Operating Rule G and CSXT Safe Way Rule 21 account a November 10,1999 toxicological test was positive for cannabinoids. Thereafter, by letter dated December 28,1999, the Carrier informed the Claimant that he had been found guilty as charged, and was dismissed from service. Form 1 Award No. 36331
On January 7, 2000, the Organization submitted a claim on behalf of the Claimant in which it was alleged that the December 9 Investigation was not held in accordance within Agreement time limits. The Vice Chairman further alleged that the discipline of dismissal was "harsh and excessive in this case."
On February 11, 2000, the Organization submitted additional correspondence to Manager Employee Relations M. D. Seibert concerning their " . . . conversation at conference on February 4, 2000." The Vice Chairman included an undated letter from the Claimant in which he acknowledged that he had a "drug problem" and pleaded for leniency premised upon his 22 years of service with the Carrier.
On February 16, 2000, the Vice Chairman again wrote to Seibert concerning their " . . conversation at conference on February 4, 2000 . . . ." The Vice Chairman also included a copy of a letter, dated February 7, 2000, from Cornerstone of Recovery, Inc., concerning the Claimant's admission for "treatment of cannabis dependence . . . ," which advised that the Claimant had successfully completed the program and was discharged on January 14, 2000.
In an April 25, 2000 letter addressed to Senior Director Employee Relations J. H. Wilson, the Vice Chairman asserted that the Carrier had "failed to respond in writing as is required in Rule 24(b) . . " of the parties' June 1, 1999 Agreement following the February 4, 2000 "discussion" with Seibert. Responding on the same day, Seibert confirmed that while he and the Vice Chairman " . . did have a general conversation regarding Mr. Shonk on February 4th . . ." it was his recollection that their conversation did not fulfll the parties' obligation to conference the matter, particularly because the issue was scheduled to be conferenced on February 15, 2000.
In March 14, 2000 correspondence to the Organization, Senior Director Employee Relations Wilson noted that this was the Claimant's ".. . second confirmed positive test in 5 years .. . ." Wilson further noted that the matter was discussed during a February 15 conference, at which time Seibert denied the appeal. The letter went on to state:
With respect to the first matter, the Carrier argues that the Hearing was scheduled for December 9, which was well within the 20-day time limit of Rule 25(d). The Director Employee Relations further stated: "Regarding the second allegation, it Form 1 Award No. 36331
is CSXT's policy that an employee who tests positive twice within five years for drugs or alcohol is subject to dismissal, and the practice is to dismiss these employees."
The matter remained unresolved on the property, and is now before the Board for adjudication.
At the outset, the Organization, relying upon Rule 25, Section 1(d) of the Agreement, asserts that the Carrier violated time limits when it "failed to schedule and hold a timely investigation." Rule 25, Section 1(d) states, in pertinent part:
The record evidence reveals that the Claimant was tested on November 10,1999, the results of which were positive for cannabinoids. However, the Claimant initially stated that the positive test was due to a "hemp diet," and it was not until November 22, 1999 that Supervisor C.. S. Bailey was so notified. In this case, it is not disputed that Bailey was the supervisor with the authority to bring charges, and when he received written confirmation from the Carrier's doctor Goldman on November 22, the Hearing was immediately scheduled for December 9,1999, which was well within the 20-day time limit set forth in Rule 25, Section 1(d).
In that connection, it is not disputed that during a November 11, 1999 meeting, the parties amended Rule 25(d), agreeing to add the following language:
Although the Organization cited the original version of Rule 25(d) during the Investigation, there is no doubt that the November 11, 1999 amended Rule was in place prior to the issuing of charges in this case on November 26, 1999.
Turning to the merits of the dispute, while undergoing a return-to-work physical in March 1996, the Claimant tested positive for cannabinoids. Thereafter, the Claimant elected to enter into a Rule G "By Pass" Program, and on March 25,1996, the Claimant agreed to the following:
A follow-up test was administered on November 10, 1999, and the Claimant's results came back positive for cannabinoids for a second time and as a result, on December 28, 1999, the Claimant was dismissed.
The Claimant was afforded the opportunity for rehabilitation after his first positive test for marijuana in 1996, and, absent mitigating factors, his failure to do so was cause for dismissal. Therefore, this claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.