PUBLIC LAW BOARD NO. 70413

AWARD NO. 44, (Case No. 44)


BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION- IBT RAIL CONFERENCE
vs

 BNSF RAILWAY COMPANY




STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:








FINDINGS:
Public Law Board No. 7048. 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 let, as amended; and that the Board has jurisdiction ever the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that established the Board.

 The facts indicate that on May ?5. 2007. Claimant tested positive far a controlled substance (Cocaine Metab.) and was medically disqualified from service by the Carrier can Mad?9, ?009. Claimant entered the Carrier's Employee Assistance Program (EAf) and was released fbr a return to duty ran July 27, ?007. At that time, the Claimant was advised that he would be subject to periodic drug and/or alcohol testing for a period of five years from the date of his



return to service. Additionally, the Claimant was informed that he would be subject to dismissal for a second violation of the Carrier's Drug and Alcohol Policy within a tern year period.

 On April 30, 2(109, Carrier conducted a follow-up test which revealed that Claimant tested positive for the. presence of cocaine. As a result, Claimant was dismissed from service on May 4, 2009.

 It is the Organization's position that the Carrier erred in dismissing the Claimant. It contended that the Carrier violated the Agreement. in particular Rule 13 the. Discipline Rule and Appendix No. 11, when it denied the Claimant a formal Investigation prior to the dismissal. It argued that because of prescribed medications the Claimant had a positive drug test. It further argued that the facts substantiate that the Claimant"s test levels were quite possibly flawed because of the extremely high Creatinine level contained in the Claimant's urine which could cause a false positive test for drugs. Additionally, it asserted that after being notified of the positive test on May 4, 2009, the Claimant requested a split sample test and took a "hair follicle drug test" to prove his innocence. According to it, the split sample test was conducted by truest Diagnostics and comeback positive because of high Creatinine Levels which caused an inflated reading for Cocaine Metab. It her pointed out that the I -lair Follicle test was conducted by the same laboratory, and it came back negative for Cocaine Metab which could not be explained by the Medical Department. Based upon the conflicting test results it concluded by requesting that the dismissal be, rescinded and the claim lie sustained as presented,

 It is the position ref the Carrier that the record proves that Claimant was afforded his contractual rights and it was riot required to hold a formal Investigation before dismissing him. On the merits, it argued that the record is clear that Claimant was tested on April 30th during a follow-up test and the test results were positive for cocaine which was a violation of his July 2'7. 200'7, Reinstatement Agreement. It further argued that with respect to the Claimant's additional test, the urine results still indicated positive for cocaine, and even though the hair test was negative neither the Department of Transportation (DOT) or it recognize alternate testing as bona-fide methodology to balance car remove a Medical Review Office (MRO) verified test result, thus. it reasoned the discipline was appropriate and it closed lay asking that it not be disturbed.

 The Board thoroughly reviewed the record of evidence anti will first address the Organization's procedural argument that Claiant should have been afforded a fair and impartial Investigation prior to any discipline being exercised. In Award No. 258 of P.L..B. No. 4244 involving the same parties to the instant dispute that Board ruled the following:

      ' ....Moreover, the Board finds that the claimant was property notified, in accordance with the .tune 24,199! Letter of Understanding, of his dismissal by the Carrier. By that letter of understanding, the parties agreed that the Carrier was not required to conduct a formal investigation

                                  P. L. B. No. 7048

                                  Award No. 44, Case No. 44

                                  Page 3


      rior to dismissin an employee such as the claimant who tests positive a a second rime for a controlled substance within a ten t10f year period ...." (Underlining Boards emphasis)


In addition to the atbrementioned Award, there is extensive fin-property arbitral precedent that that is consistent with the; reasoning expressed above. therefore the Board determines that based upon the facts of this case Claimant was neat denied his contractual rights when he was not afforded a formal Investigation.

 `frvurning to the merits, it is clear that the Claimant tested positive fir a controlled substance (Cocaine Metab.) twice within a period of less than two years. The first violation occurred can May ?5. 2()07. after which the Claimant accepted a conditional suspension/waiver can May 2, 207, that included participation in the LAP and compliance with all of its instructions. On July 27, ?007, Claimant satisfactorily completed the program and signed a conditional reinstatement that he was subject to dismissal if he violated any one of the following pertinent conditions:

      "a. More than one confirmed positive test for any controlled substance or alcohol obtained under any circumstances during any 1h-year period.


      b. A single confirmed positive test for any controlled substance or alcohol obtained under any circumstances within three years of any 'serious offense' as defined by the Burlington Northern Santa Fe 'Poticy for Employee Performance Accountability'."


The Organization arrgued that the Claimant was taking medication that could result in a false positive test as attested to fey his personal physician. The Carrier acknowledged there was a possibility that the drugs could show a positive tar medications. but that its medical expert stated it would not register a positive tbr cocaine. Review of the Claimant's personal physician': statement reveals that he wrote the following:

      "I ordered this medication for him and it would cause him to have a positive

      drug test."


The Claimant's personal doctor's statement is not inconsistent with the Carrier doctor's findings and it offers the Claimant no assistance as he never stated that the medications that Claimant was taking would cause a false, positive far cocaine nor was there any proof offered that an above normal level of°a Crcatinine in the urine would contribute to a false positive for cocaine. The
 P.L.13. No. 7048
 Award No. 44, Case No. 44
 Page 4
Hair Follicle test perfared by the same laboratory raises concern as it registered negative for cocaine, however. that result is negated by the fact that the second urine test showed positive for cocaine and it was not disputed that the DOT does not recognize alternate testing as a legitimate methodology to balance or remove an MRO verified test result. Therefore, as a result of two positive drug tests for cocaine within less than two years of one another and his failure to follow the instructions of the Medical Department set forth in its July 27, 2007, Reinstatement Notice. the Claimant was subject to dismissal. The Board finds and holds that Claimant was properly notified in accordance with the June 24, 1991 letter of Understanding, of his dismissal which will not to disturbed as it was not contrary to the Carrier's Policy for Employee Performance Accountability (PEPA).

 AWARD
Claim denied.

 William R. Miller, Chairman 8c Neutral Member

 Samantha Rogers, Carne ember

 Award Date:

    ~a

David lJ. Tanner, Employee Member