BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
and )
UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral Member

D. D. Bartholomay, Employee Member

D. A. Ring, Carrier Member


                    Hearing Date: March 23, 2004


STATEMENT OF CLAIM:
      1. The dismissal of System Welder Helper B. B. Rowe for his alleged use of illegal

          and unauthorized drug as evidenced by the positive test result of the FMCSA

          Random Drug and Alcohol test administered on July 19, 2002 was without just

          and sufficient cause, on the basis of unproven charges and in violation of the

          Agreement (System File J-0248-68/1346054).


      2. As a consequence of the violation referred to in Part (1) above, System Welder

          Helper B. B. Rowe shall now be reinstated to service with seniority and all other

          rights unimpaired and compensated for all wage loss suffered and have his record

          cleared of this incident.


FINDINGS:
Public Law Board No. 6302, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

 On July 26, 2002, Carrier notified Claimant that he had tested positive for an illegal drug during a random drug test and offered Claimant the opportunity to waive investigation, accept the penalty of dismissal and enter into an agreement that would provide for his conditional reinstatement. Claimant rejected the offer. On August 2, 2002, Carrier notified Claimant to appear for an investigation on August 15, 2002, concerning his alleged use of an illegal and unauthorized drug as evidenced by his positive drug test. The hearing was postponed twice and

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held on September 19 and 23, 2002. On October 8, 2002, Claimant was notified that he had been found guilty of the charge and dismissed from service.

 The record reflects that on July 19, 2002, Claimant tested positive for methamphetamine. Claimant was informed of the positive test result by the Medical Review Officer on July 25, 2002. Claimant denied illegal drug use and maintained that he requested that the lab test the split sample. Claimant testified that he faxed such a request to the lab on August 2, 2002.

 Initially, we observe that the hearing officer conducted this investigation in an exemplary manner. When Claimant's testimony was inconsistent with documentation submitted by the MRO. The hearing officer recessed the hearing and made arrangements to reconvene by telephone conference on a subsequent day when the MRO was available to testify. Furthermore, the Organization offered evidence that Claimant faxed a request to test the split sample to the lab on August 2, 2002. Evidence also indicated, however, that the lab had no record of receiving such a request. Claimant testified that he had called the lab prior to the hearing and that an individual named Melissa confirmed to him that she received the fax but also advised that the lab had no record of the request. The hearing officer advised Claimant that he would hold the record open to enable Claimant to obtain a written statement from Melissa to that effect. There is nbo evidence in the record that Claimant ever submitted such a written statement or that Claimant provided any further evidence concerning any attempt to obtain such a statement.

 Under the circumstances, we see no reason to overturn the decision made on the property not to credit the evidence that Claimant requested that the split sample be tested. Furthermore, even if Claimant made such a request, it would have been untimely, as such requests were required to have been made within 72 hours of notification of a positive test result. Claimant was notified of the positive test result on July 25 and claimed to have made the request on August 2, outside the 72 hour requirement. Accordingly, we conclude that Carrier proved the charge by substantial evidence.

      Under the circumstances, we find the penalty of dismissal to be excessive. We

shall order Carrier to reinstate Claimant on a last chance basis, with seniority unimpaired but
 without compensation for time held out of service. Reinstatement shall be subject to the
 following conditions:

      · Claimant must contact Carrier's Employee Assistance Counselor within seven

      days of being notified of his reinstatement. The Employee Assistance Counselor

      shall evaluate Claimant to determine whether he may safely be returned to service

      and the course of treatment he should follow.

      · If the evaluation indicates that Claimant can be returned to service safely,

      Claimant shall be returned to service on a probationary basis. Claimant shall

      follow the course of treatment recommended by the Counselor.

      · If the evaluation indicates that Claimant cannot be returned to service safely,


                          _2_

                                            'P t- 6 63 0 a_,

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          Claimant shall not be returned to service but shall follow the course of treatment recommended by the Counselor while out of service. Once the Counselor's evaluation determines that Claimant can be returned to service safely, Claimant shall be returned to service on a probationary basis and shall continue to follow the course of treatment recommended by the Counselor.


      · If at any time during the twelve month period following Claimant's return to

      service, or at any time prior to Claimant's return to service but while under

      treatment, Claimant fails to follow the course of treatment established by the

      Counselor, Claimant shall revert to a dismissed status without the need for further

      investigation or other disciplinary proceeding.

      · If Claimant successfully completes the twelve month period following his return

      to service, his probationary status shall terminate.

      AWARD


      Claim sustained in accordance with the Findings.


                          ORDER


The Board, having determined that an award favorable to Claimant be made, hereby orders the Carrier to make the award effective within thirty (30) days following the date two members of the Board affix their signatures hereto

                    Martin H. Malin, Chairman


D. A. Ring, D.
 ' artholomay\\
 Carrier Member Emplo e Member

                Dated at Chicago, Illinois, May 22, 2004