Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45326 Docket No. MW-48076
25-3-NRAB-00003-230093
The Third Division consisted of the regular members and in addition Referee Bradley Areheart when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
PARTIES TO DISPUTE: (
(BNSF Railway Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The discipline (dismissal) imposed upon Mr. P. Husted by letter dated June 9, 2021, for alleged violation of MWOR 1.5 Drugs and Alcohol was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File C-21-D070-19/10-21-0246 BNR).
The appeal* as presented by letter dated July 20, 2021 to General Manager Lief Smith shall be allowed as presented because said claim was not disallowed by Mr. Smith in accordance with Rule 42.
As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimant P. Husted shall be reinstated in accordance with Rule 40G of the Agreement.”
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.
Factual Background
The Claimant, Mr. Patrick Husted, was subject to a drug test on April 5, 2021 due to a previous violation in 2020 (for which he had previously received a Level S Conditional Suspension). The tester arrived onsite at 6 AM and inquired with supervisor Michael Paz regarding the Claimant’s whereabouts. Mr. Paz reached out to Claimant and told him about the scheduled drug and alcohol test. The Claimant told Mr. Paz that he did not feel well and asked if he could take a sick day. Mr. Paz explained that if he failed to come into work, it would be considered a refusal to take a drug and alcohol test since he had now been notified.
BNSF has a policy on the use of alcohol and drugs. That policy states as follows:
BNSF also has a Policy for Employee Performance Accountability (PEPA). That policy classifies a drug and alcohol violation as a Serious one. On October 26, 2020, Mr. Husted had been issued a Level S for a drug and alcohol violation. Section C(2)(b) of PEPA states: “If an employee commits an additional Serious Violation within the Review Period, he or she may be subject to dismissal.” The Organization determined that Mr. Husted was under the influence on April 5, 2021while on property, and that he had driven a company vehicle while under the influence. That April 5th violation was the second in his review period. The Claimant was dismissed from employment on June 9, 2021.
During the appeal phase, the Organization mistakenly sent the wrong attachment for Mr. Husted’s appeal. The attachment concerned a different employee by the name of Thomas Brabec. By the time the Organization discovered the mistake, it was beyond the 60-day window from the date of the original discipline.
Position of Organization
The Organization argues that the blood test is the authoritative standard for whether the Claimant was under the influence. It argues a blood test is more reliable than a breathalyzer and that there are other reasons the Claimant may have had a false positive. Namely, he has a condition of chronic acid reflux, he is on a Keto diet, he had smokeless tobacco in his mouth prior to the tests, and he regurgitated in his mouth between the first and second tests.
The Organization also argues that the quantum of discipline was too great. It was arbitrary, excessive, and in violation of the Agreement. The Claimant was a 15-year veteran and the ultimate goal of any discipline policy should generally be rehabilitation—not to punish. The discipline was thus too great to satisfy ordinary principles of just cause.
Carrier’s Position
The Carrier argues the procedural violation is reason enough to deny the appeal. Additionally, there were a clear policy and rule violation, with appropriate discipline administered. The Carrier argues this was an employee who was at work under the influence of alcohol twice within approximately six months. As such, there is substantial evidence for the decision to dismiss him.
Analysis
The Board finds the Organization’s procedural argument unpersuasive.
The Board also finds the Carrier had substantial evidence to dismiss the Claimant. Specifically, the results of the breathalyzer test support the discipline imposed. While we appreciate the arguments made in support of possible false positives, a breathalyzer is a reasonable way of identifying employees who are under the influence of alcohol. It is uncontested that the Claimant drank alcohol the night before and thus reasonable that he would have had some amount within his system the next morning. He testified that he was nervous that he wouldn’t pass the drug and alcohol test if he came into work that morning. Also, while the Organization stands on a blood test that showed no alcohol in his system, it stands to reason that the Claimant’s blood alcohol content would continue to drop and the blood test could have possibly shown no alcohol at 10 AM even if he had a rule-violating amount at 6:23 AM. Finally, this was his second violation within the review period, which made his dismissal not excessive and reasonable under the circumstances.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 31st day of October 2024.