PUBLIC LAW BOARD NO. 59411
PARTIES) UNITED TRANSPORTATION UNION
TO )
DISPUTE) SPRINGFIELD TERMINAL RAILWAY COMPANY
STATEMENT OF CLAIM:
Appeal of Police Officer Steven T. Aalto of dismissal from service with
the Sprinted Terminal Railway Police Department and payment for
all time lost, including time spent at the hearing on May 26, 2004.
FINDINGS:
The Board, after hearing upon the whole record and all the evidence, finds that the
parties herein are Carrier arid Employee within the meaning of the Railway Labor
Act, as amended; this Board has jurisdiction over the dispute involved herein; and,
the parties were given due notice of hearing thereon.
On May 4, 2004, Claimant was instructed to report for a return-to-work physical
examination after being out of service for over a year due to what Claimant would
subsequently offer in testimony at a company hearing, "an on-duty injury that was
preceded by an off-duty injury," with the extent of injury reportedly being a broken
leg. At the company exaation Claimant was administered a breath alcohol test
that showed him at 12:56 pm. to have an alcohol concentration level of .054. A
confirmatory test, performed 15 minutes later, showed a concentration level of .1352.
Claimant was thereafter notified to report for a formal investigative hearing as a
consequence of the above breath alcohol test findings being viewed by the Carrier to
constitute a violation of General Rule G. The provisions of
Rule GR»G read in
part
here pertinent as follows:
The use of alcoholic
beverages,
intoxicants, . . . by employees subject
to
duty, when on
duty or on Company property is prohibited and is
sufficient cause for dismissal.
Employees must not report for duty,
or be on Company property
under the influence
of or
use while opt duty or have in their possession
while on Company property, any drug, alcoholic beverage, . . . that
will in any way adversely affect their alertness, coordination, reaction,
response or safety.
As also brought out at the hearing, a "Drug and Alcohol Testing Policy" provides,
among other things:
"In order
to provide and maintain
a
safe work environment,
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AWARD NO. 63
CASE NO. 63
all employees and applicants will be subject to alcohol and/or drug testing."
Further, a lisp of circumstances stated in the policy where alcohol and/or drug
testing is required, includes the following as concerns the case here at issue:
will be tested when required to undergo
an examination in conjunction with their employment {Periodic,
Return-to-Duty, after absence of 3t> days or more, Fitness for Duty,
Transfer."
Basically, it is the position of the Carrier that since it maintains a "zero tolerance"
standard with regard to violations of Rule GR-G, that termination of Cimant from
service is warranted as a result of a breathalyzer test revealing the presence of
alcohol on his breath at a level of.115 on reporting for a return-to-work examination.
The Organization argues that discipline be set aside account the Carrier not having
presented as a witness at the company hearing the individual who wormed the
breath test. The lard finds no merit in this contention. It was shown at the
hearing that the test was performed by a Certified Breath Alcohol Technician, and
no purpose would have beer served by that technician being at the hearing
in that a
supervisory technician was present and responded to all questions advanced about
the manner in which such tests are conducted. Moreover, an Alcohol Testing Form
compl at the time of the test, and tented into evidence at the hearing, shows
the test resn!!s eosins
are
of CUlmaht in acknowledgement of a
statement that reads:
I certify that I have submitted #o the alcohol test, the results of which
are accurately recorded on this form. I understand that I must not
drive, perform safety-sensitive duties, or operate heavy equipment
bemuse the results are positive.
The Board is also not persuaded by Organization argument that Rule GR-G is not
applicable to Claimant because he vas
not on
due,
subject
#o duty, or on company
property when the
armed
violation occurred; the test results be voided since
Clairol was t advised that he would be subject to a breath test upon report
for a return-to-work examination; and, he was not aware of the Carrier Drug and
Alcohol
Testier
Policy. "When asked if it vas his understanding that when you go
for a return-to-work physical you would receive a drug and alcohol test, Claimant
gave a rinse that stretches the bounds of credulity. He said i# was his
understanding that he would receive a drug test, urinalysis, but he did not believe he
would also be given an alcohol testy
We also find reason to question the above contentions of the Organization in that
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AWARD NO. 63
CASE NO. 63
respect, Claimant was the subject of a disciplinary grievance appeal to this Board in
Case N©. 45 (Award No. 45). The dispute involved Claimant's dismissal from
service for
an alleged failure to
contact the Chief of Police to schedule a return-toduty physical and
failure
to timely follow instructions that he obtain clearance from
the Employee Assistance Program Manger upon passing a physical examination.
Although the Board found merit in procedural objections advanced by the
Organization involving the content of instructions mailed Claimant, we found
certain actions of Claimant to have been of an insubordinate nature, but not
neces$arity gross insubordination. Thus, while the Board held that Claimant's
termination from service be set aside, we recognized that Claimant had not; in fact,
reported for
a return-to-work ezaminatim The Board therefore directed Claimant
report for a return-to-duty physical and alcohoiildrug screen test within 10 to 13
calendar days of the date acrd release of the AwardL That decision was made in
recognition of the record as presented giving reason to believe that Claimant
might
well have a substance abuse problem: The Findings in the Award
further stated:
"If Claimant fails to report as directed for the physical eiamination and
alcoholldrug screen, or he tests positive for the alcohol/drug screen, then the penalty
of dismissal from all service will be deemed
to have been sanctioned by this Board."
The Board also finds in study of the current case reason to further believe that
Claimant creed recognize that he well may have a substance abuse problem. It was
his testimony that he could not believe he tested at a .05 level, offering that he had
two beers with his lunch before he left home, which he said was between 10:00 &.m.
and 10:30 a .m. Clinical tests have shown that when an average weight person
consumes two 12 oz. hem that their 13d Alcohol Content (BAC) will measure .04
on a breathalyzer after the first hour, and theft
the body
will elianinate.(115 percent
of alcohol each hour thereafter. It would therefore seem
that if Cwt had
consumed only two beers at 10:30 a.m., his BAC would have been well below a .054
percent, or the level he
tested at 1Z:56
pm. at the company examination.
In the light of the above considerations and overall study of the record the Board
ids that the Carrier has met a necessary burden of proof for its decision to
terminate Claimant from service. The claim will, therefore, be denied.
AWARD- Claim denied.
Chair & N
eutrr~l
Member
Anthony FLomanto
Carrier Member Organization Member
North Billerica, MA
August 23, 20
