**CORRECTED**
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 38128
 Docket No. MS-39283
 07-3-06-3-157

 The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.

 (John P. Daly, Jr.
 PARTIES TO DISPUTE:
 (National Railroad Passenger Corporation (Amtrak) -
 ( Northeast Corridor

 STATEMENT OF CLAIM:





"CORRECTED"

 Form 1 Award No. 38128

 Page 2 Docket No. MS-39283
 07-3-06-3-157
 between the plus or minus 2% acceptable range, as specified by the
 manufacturer of the Intoxilyzer and the gas supplier.
 After my positive reading on August 10, 2005, at 11:09 am, Ms.
 Brennan recalibrated the Intoxilyzer 400, Serial No. 047962D using
 External Calibration Gas No. 3338016 with an expiration date of
 December 11, 2005 and a value of .085. The machine read .043,
 which clearly exceeds the acceptable range of plus or minus 2% as
 specified by Scott Specialty Gas, the supplier of the gas.
 Based on the above test results and in accordance with the above
 referenced CFR, the test must be treated as if the test never
 occurred. Applicable portions of the above CFR states: `As an
 employer, a BAT, or an STT, you must cancel an alcohol test if any
 of the following problems occur. These are `fatal' flaws. You must
 inform the DER that the test was cancelled and must be treated as if
 the test never occurred.' (c) `In the case of a confirmation test: (5)
 The next external calibration check of the EBT produces a result
 that differs by more than the tolerance stated in the QAP from the
 known value of the test standard. In this case, every result of 0.02 or
 above obtained on the EBT since the last valid external calibration
 check is cancelled.'
 I formally request my termination to be overturned by the Board,
 and that I be made whole from the time of my suspension to date of
 return. This shall include returning to my position as a Substation
 Election [sic] on Amtrak's Metropolitan Division at Princeton,
 Junction, NJ, with no loss of time or seniority, as well as all pay,
 including straight time, overtime, vacation, and holiday pay that I
 would have been entitled to if I had not been suspended or
 terminated. All benefits to be restored."
 "CORRECTED"

 Form I Award No. 38128
 Page 3 Docket NO. MS-39283
 07-3-06-3-157
 FINDINGS:

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 dune 21, 1934.


This Division of the Adjustment Board has jurisdiction over the involved herein.




After testing positive for alcohol on a federal random test on February 17, 2004, the Claimant signed an Alcohol and Drug Waiver Agreement dated March 2, 2004 under the Carrier's Drug and Alcohol Policy. The Waiver signed and agreed to by the Claimant provided for periodic random testing and further provided, in pertinent part, that "I further understand that if I test positive in any future drug/alcohol test, including tests taken as part of any physical examination, I will be dismissed from all Amtrak service."


On August 10, 2005, the Claimant submitted to a follow-up test. The initial alcohol test was .027, which was above the permissible cut off level of .020 as established in the Carrier's Drug and Alcohol Policy. A confirmation test was conducted 18 minutes later with a result of .021 - again, above the permissible cut off level.


After an Investigation, which was postponed several times as a result of the Claimant's failure to attend even though notifications were sent to his address of record, on November 22, 2005, the Claimant was dismissed.


The terms of the March 2, 2004 Waiver signed by the Claimant are selfenforcing. The Claimant agreed that ". . . if I test positive in any future drug/alcohol test . . . I will be dismissed from all Amtrak service." The Claimant

**CORRECTED**

 Form 1 Award No. 38128
 Page 4 Docket No. MS-39283

tested positive for alcohol on August 10, 2005 in clear violation of the conditions agreed to by the Claimant in the March 2, 2004 Waiver. Substantial evidence therefore supports the Carrier's determination that the Claimant engaged in misconduct and dismissal was not arbitrary.


The Claimant's arguments that the testing equipment was not correctly calibrated do not change the result. The Claimant was given numerous opportunities to attend the Investigation concerning his positive test result and, after several postponements, failed to attend any of the proceedings. Had the Claimant attended, his arguments and evidence concerning alleged incorrect equipment calibration could have been considered. The Board cannot now consider such arguments made outside of the record developed during the Investigation.


The Carrier's assertions that the testing equipment was correctly calibrated because the testing agent simply entered the wrong serial number for the test canister on the form and that the calibration actually was within acceptable levels (therefore making the Claimant's test valid under the Code of Federal Regulations as an administrative error) need not be considered. Given the Claimant's failure to attend the Investigation and timely raise his arguments concerning the calibration of the equipment, the Carrier's defense is moot.








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 Third Division


                        Dated at Chicago, Illinois, this 23rd day of April 2007.