NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 7048 AWARD NO. 4:5, (Case No. 45)
BROTHERHOOD CAF MAINTENANCE OF WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE
BNSF RAILWAY COMPANY
William It. Miller. Chairman & Neutral Member
 Samantha Rogers. Carrier Member
 David D. Tanner. Labor Member

 STATEMENT OF CLAIM;
"Claire of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement commencing April 14, 2009, when Claimant, Chris R. Aragon (6584973), was dismissed for his failure to actively comply with instructions of the Medical and Environmental Health Department regarding requirements from BNSF's Employee Assistance Program.
2. As a consequence of the violation referred try in part l the Carrier shall
 reinstate the Claimant with all seniority, vacation, all rights unimpaired
 and pay for all wale loss commencing April 14, 2(109, continuing forward
 and/or otherwise made whole."
 (Carrier File No. r4-O109) (Organization File No. 180-1312-09Z.CLM)
Public Law Board No. 7(148, 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 have participated in accordance t« the Agement that established the Board.

 The tarts indicate that can May 9, 2(08, Claimant tested positive for alcohol. Claimant accepted responsibility for his actions and entered the Carrier's Eployee Assistance Program ( IAP) and walls released ffor a return to duty can June 25, 2(1(18. At that time, the Claimant was advised that he would be subject try periodic drug and/or alcohol testing. Additionally, the Claimant was informed that he would be: subject to Treatment/Educational anti Ongoing Program



requirement% and he would he subject to dismissal f`or a second violation of the Carrier's Drug and Alcohol Policy within a ten year period.

 ()n April 14. 2009, Carrier notified Claimant to appear for a formal Investigation on April 22, 2009, which was mutually postponed until April 29, 2009. concerning in pertinent pout the following charge:

      "...to determine all facts and place responsibility if any, in conjunction with your alleged failure to actively comply with instructions of the Medical and Environmental Health Department regarding requirements from RNSF's Employee Assistance Program on April 14,2009 while working as flagman on the Vietorville Independent Flagman gang."


      On May 2'7, 2009, Claimant was notified that he had been fbund guilty as charged ;and he


It is the Organization's position that the Carrier erred in dismissing the Claimant. It contended that the Claimant admitted responsibility for his failure to abide with the Carrier's Policy regarding alcohol and entered a rehabilitation program after which he complied with all instructions from EAP Counselor P. Lopez and under his guidance everything went well and Claimant regularly attended after work counseling sessions in various programs. It argued that subsequently, he had to work away from home and the Claimant and Counselor made adjustments in his requirements fear travel. According to it, the Carrier changed personnel and the Claimant began tea deaf with a newly hired EAP Counselor, fI. Whitfield, whom the Claimant had two meetings with, It further argued that the Claimant gave Whitfield his new address, new phone number and all other contact information that might be needed. Additionally, the Claimant changed all of the aforementioned information with the various departments of the Carrier as well as the Organization. The Organization asserted that at the second meeting the: Claimant was told lay Counselor Whitfeld that he was in compliance with all of the EAP regulations and that it would not b; necessary for him to contact hire any further, However, if contact was needed in the future Whitfeld advised Claimant he would call him. It stated that the Claimant continued to attend meetings as required, but simply slid not contact the new EAP Counselor because he thought it was no longer required. Simply put it reasoned that there had been a miscommunication between the EAP Counselor and Claimant as to his continuing obligations. Last, but not least it argued that even if the Carrier could produce evidence to support their charges (which they did not) the discipline is excessive in proportion tea the allegations. It concluded by requesting that the dismissal be rescinded and the claim he sustained as presented.

 It is the position of the Carrier that the record substantiates that the Claimant did not contact his EAP Counselor, I I. Whitfield from August, 2008 through April, 2009 and there. is
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nothing that shows that he was in compliance with his Client Agreement for the violation of its Policy on the use of alcohol and drugs or with EAP instructions. It argued that the Claimant made several excuses for his actions, but failed to prove they were justified. It stated in its declination letter of July 30, 2009, the following: "it appears one phone call, one letter; one report of attending meetings for help would have saved his job. This Claimant did nothing to comply with his signed agreement with EAP." It argued that there is no proof of attending weekly self-help group meetings or counseling sessions, nor is there any proof that Claimant attained a AA or NA sponsor or that he even furnished Whitfield with an updated address or telephone number. It asserted that the Claimant tried to blame everyone, but himself for his failure to meet his responsibility to be in compliance with his reinstatement requirements and because he did not meet his obligations he was guilty as charged. It closed by asking that the discipline not be disturbed.

 The Board has thoroughly reviewed the transcript and the record of evidence and found that that the Investigation was held in compliance: with Rule 13(a) the Discipline Rule and Appendix No. l I . The record is clear that Claimant signed the Client Agreement which covers the Carrier's Policy on the use of alcohol and drugs on June 25, 20()8, that had specific requirements covering his obligations for the retention of his position. There is no dispute that the Claimant did not follow all of those requirements between August 2008 and April 2009, the question at issue was there any mitigating reason for his actions. The Claimant testified on page 26 of the Transcript when asked why he had not been regularly calling his EAP Counselor as follows:

      "No, this is why T called him to let him know what was going on with me while 1 was working. And this is when he told are if 1 need anything further from you t will be in contact with you. This is why I did not contact him once a month. T was just going to work and doing what t needed to do. He said if I need anything from -you t will be in contact with you." (Underlining Board"s emphrrvis)


The Claimant reiterated the testimony quoted above several times and it was not rebutted. In this instance it would have been valuable to have had testimony or a written statement from Mr. Whitfield the EAP Counselor as to his recollection of the second meeting and the conversation he had with the Claimant. Absent that testimony it is not unreasonable to believe that the Claimant misconstrued Whitfield's comments to believe that he did not have to contact the; Counselor on a regular basis as he further testified without rebuttal that he gave the Counselor his new address and telephone number on the same day he gave it to various Carrier Dements. Claimant's possible confusion as to his obligations does not eliminate the fact that the Carrier has proven that he did not abide by all of the requirements of the Client Agreement.

 The only issue remaining is whether the discipline assessed was appropriate. In this instance based upon the peculiar facts of the case the Board has determined there was probable
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cause for confusion in the conference between the Claimant and EAP Counselor Whitfeld and it is grounds fear mitigation of the discipline. The Board finds and holds that the discipline was excessive and it is reduced to a lengthy suspension which is corrective in nature anti i accordance with the Carrier's Policy for Employee Performance Accountability (PEPA). The Claimant is to reinstated with seniority intact and all other rights unimpaired, but with no money back pay. Upon return to service Claimant's disciplinary status reverts to that he held prior to his dismissal on May 27. 2009, and he will he required to complete the June 25, 2008 Cliet Agreement in accordance with all EAP and Carrier instructions and policies. The Claimant is forewarned that he needs to be careful in the future to adhere to Carrier Rules arid Policies.

                  AWARD


Claim sustained its accordance with the Findings and the Carrier is ordered to make the Award effective nn or before 30 days following the date the Award is signed by the parties.

                    s


          William R. Miller; Chairman & Neutral Member


Samantha Rogers, Carrie mber David I). Tanner, Employee Member

 Award Date: "`