On November 7, 2006, the Carrier issued a Notice of Hearing to the Claimant which, in pertinent part, read:
On November 22, 2006, following the Investigation, the Carrier wrote to the Claimant informing him that he had been found guilty of violating the Rule and that he had been assessed the discipline of dismissal. That dismissal has been appealed to the Board.
At the Investigation, the Carrier introduced testimony that the Claimant's position as a Signal Maintainer required him to be subject to random drug testing under regulations issued by the Federal Railroad Administration (FRA). A random drug test given on October 4, 2006, was positive for marijuana. Carrier witnesses outlined the drug-testing process describing the tests given, chain of custody procedures, and follow-up activities with the Claimant after the positive result had been obtained. The Organization did not challenge any of the Carrier's evidence. Accordingly, there can be no dispute that the Claimant violated Rule GR-G.
The only remaining issue before the Board is whether the Carrier's decision to dismiss the Claimant was appropriate. On the property, the Organization argued that permanent dismissal was excessive and the Carrier should have referred the Claimant to its Employee Assistance Program for rehabilitation. The Carrier countered, citing several Awards on its property, upholding dismissal for a first-time drug offense. Form 1 Award No. 40659
The Claimant, an employee with three years of service, did not attend the Investigation. Local Chairman Burke was present and represented the Claimant. Burke stated that he did not know why the Claimant was not present. He did not make any request for a postponement. Instead, Burke stated that the Claimant had furnished him with a written statement which the Claimant asked to be read at the Investigation. Burke did so.
In the statement, the Claimant admitted that he had smoked marijuana with some friends a few days before the random test had occurred. As far as he was concerned, however, "I didn't break or violate Rule G," because he was not on duty when he smoked the marijuana and was not under the influence at the time that he was tested. The Claimant further expressed the opinion that smoking marijuana was not a serious offense. As he put it:
The position of the federal government and the Carrier, at least with respect to the use of marijuana by railroad employees in certain classifications, is not compatible with the views expressed by the Claimant in his statement. The random drug test taken by the Claimant arose from regulations established by the FRA. The regulations require employees performing work in highly sensitive safety positions in the railroad industry to be tested at random intervals to ensure safety to the public and employees of the railroad. One of the positions falling into the category of sensitive safety positions is that of Signal Maintainer, the position held by the Claimant. The Carrier's Rule G policy came into play after the random drug test showed a positive result. Neither the federal regulations nor the Carrier's Rule G policy require a finding that the employee be under the influence of the drug at the time of the test. The presence of the proscribed drug in the employee's system is sufficient to support a finding of violations of both the FRA regulations and the Carrier's Rule.
It is clear from the Claimant's forthright statement that he does not agree with the importance placed by the federal government and the Carrier on total abstinence Form 1 Award No. 40659
so as to preclude the possibility of such drugs affecting an employee's performance while on duty. There is nothing in the Claimant's statement, or in any evidence presented at the Investigation that would allow the Board to conclude that any change of his belief would result from his participation in the Carrier's Employee Assistance Program.
In light of all the circumstances presented here, which include the Claimant's statement, his failure to appear at the Investigation where he would have had the opportunity to explain his position in greater detail, and his relatively short period of employment with the Carrier, we cannot find any basis to conclude that the Carrier's decision to terminate the Claimant was arbitrary, excessive, or unreasonable. The claim will be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.