Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43359 Docket No. MW-44187 19-3-NRAB-00003-170102

The Third Division consisted of the regular members and in addition Referee Gerald E. Wallen when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(Dakota, Minnesota & Eastern Railroad Corporation

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline (dismissal) imposed on Mr. B. Hulet by letter dated

July 20, 2015 for allegedly '... in accordance with the provisions of the Drug and Alcohol Policy Violation Waiver which you voluntarily signed on February 26, 2015.' was on the basis of unproven charges, excessive and in violation of the Agreement (System File B-1534D-203 DME).

(2) As a consequence of the violation referred to in Part (1) above, Claimant B. Hulet shall be reinstated to service with seniority and all other rights unimpaired, his record cleared of the dismissal and he shall have '... any vacation credit, insurance, and retirement benefits fully reinstated, and compensation for all straight time and overtime lost as a result of the dismissal action, as claimed herein.' "

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 June 21, 1934.

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

Parties to said dispute were given due notice of hearing thereon.

The Claimant was dismissed for a test refusal on a return-to-work drug and alcohol test. According to the record, the initial results of a drug and alcohol test were reported to the carrier on February 23, 2015. On February 26^th, the Claimant signed a waiver agreement wherein he admitted responsibility and waived his right to an Investigation. He agreed to participate in a treatment program and comply with all program requirements, which included a return-to-work test and followup testing thereafter. He further agreed that if he refused to be tested at any time, his employment in all capacities would be immediately terminated "... without the necessity of a hearing under the terms of the collective bargaining agreement." The Claimant was scheduled for the return-to-work test on July 6, 2015. He was informed issues required the rescheduling of the test to July 7, 2015 at 10:45 A.M. The Claimant did not show up for the test. Efforts to make contact with the Claimant via his pager thereafter were unsuccessful. The carrier was notified of the missed test by copy of a letter sent to the Claimant by certified mail dated July 8, 2015. The letter was signed for by a person with the same last name as the Claimant. There was no attempt by the Claimant to reschedule the test after delivery of the letter.

Under the circumstances, the record provides no proper basis for disturbing the carrier's action. Accordingly, the claim must be denied.

AWARD

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 Third Division

Dated at Chicago, Illinois, this 14th day of December 2018.