THIRD DIVISION
Award No. 44601 Docket No. SG-45407
22-3-NRAB-00003-190137
The Third Division consisted of the regular members and in addition Referee James M. Darby when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Providence & Worcester Railroad Company STATEMENT OF CLAIM:
“...Claim on behalf of C. Machado, for reinstatement to his former
position with compensation for all time lost, including overtime and comp-time if applicable, all seniority and benefits unimpaired, including Railroad Retirement credits, compensation for any expenses incurred that would have been covered by Carrier provided insurance, and any mention of this matter removed from his personal record; account Carrier violated the current Signalmen's Agreement when it issued the harsh and excessive discipline of dismissal to the Claimant without providing him a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on October 31, 2017. Carrier’s File No. D-17-PW- 062-1. General Chairman's File No. D-17 -PW-062-1. BRS File Case No. 16043-P&W. NMB Code No. 16.”
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.
Carrier hired the Claimant on March 15, 2004. On October 16, 2017 at approximately 9:10 AM, the Claimant reported for duty as Track Laborer at the PWRZ Valley Falls location in Rhode Island. Track Laborer/Inspector Paul Matthew Heon was at the location when the Claimant arrived in his truck and observed behavior consistent with intoxication. Mr. Heon also detected the odor of alcohol coming from the Claimant. Heon called Roadmaster Joseph Lavoie to advise him of his observations. Mr. Lavoie instructed Mr. Heon to keep the Claimant in his truck. Approximately one hour later, Mr. Lavoie and James Ferraro, Director of Engineering arrived at the scene. They observed that the Claimant’s eyes were bloodshot and could smell alcohol on him. The Claimant was brought into the office building at Valley Falls and Mr. Ferraro contacted the Carrier’s drug and alcohol testing administrator, Advantage Drug Testing, to conduct a reasonable suspicion test. At approximately 11:17 AM, the Claimant submitted to a breathalyzer test, which registered 0.106% blood alcohol content. A second breathalyzer test performed 15 minutes later registered 0.104%.
On October 18, 2017, the Carrier charged the Claimant with having failed two breathalyzer tests while on duty. An investigation was conducted on October 31, 2017, where the Claimant was provided a full and fair hearing. After concluding there was sufficient evidence presented at the investigation to support a finding of a violation of Carrier rules, the Carrier dismissed the Claimant from service on November 6, 2017. The Organization appealed this determination and the matter is now properly before this Board for adjudication.
Carrier General Code of Operating Rules (“GCOR”) 1.5 provides as follows: GCOR 1.5 - Drugs and Alcohol
The use or possession of alcoholic beverages while on duty or on
company property is prohibited. Employees must not have any measurable alcohol in their breath or in their bodily fluids when reporting for duty, while on duty, or while on company property.
The use or possession of intoxicants, over-the-counter or prescription drugs, narcotics, controlled substances, or medication that may adversely affect safe performance is prohibited while on duty or on company property, except medication that is permitted by a medical practitioner and used as prescribed. Employees must not have any prohibited substances in their bodily fluids when reporting for duty, while on duty, or while on company property.
The results of the Claimant’s breathalyzer tests are undisputed. At no point did the Claimant question the test results he was provided on October 16, 2017 or dispute the testimony of the Carrier witnesses during the hearing on October 31, 2017. Furthermore, when the Claimant was asked at the close of the hearing whether he and his representative were allowed to have relevant testimony and/or evidence entered on his behalf, he answered in the affirmative. Legions of awards support a carrier’s right to dismiss employees for reporting to work and failing breathalyzer tests. Additionally, this is the Claimant’s second instance in two years of failing such tests. In 2015 he was issued a Letter of Warning and referred to the Carrier’s EAP program. Under these circumstances, the Board is unwilling to disturb the Carrier’s reasonable discipline determination herein.
Accordingly, for all these reasons the claim is denied.
Claim denied.
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 29th day of October 2021.