PARTIES Brotherhood of Maintenance of-Way Employes
 TO and
 DISPUTE: Southern Pacific Transportation Co. (Western Lines)
 STATEMENT "1. --That the Carrier violated the- provisions
 OF CLAIM: of the current Agreement when, in a letter
 dated December 10, 1985, it dismissed Track
 Laborer D. E. Lakey from its service oti the
 basis of unproven charges, said action being
 in abuse of discretion.
 2. Carrier shall now exonerate Mr. Lakey of all
 charges and reinstate him to his former
 position with the Carrier with seniority and -
 all other rights restored unimpaired and
 compensation for all wage loss suffered-."
 FINDINGS

 Upon the whole record, after hearing, the Board finds that t!re -
 parties herein are Carrier and Employees within the meaning of the
 Railway Labor Act, as amended, and that this Board is- duly
 constituted under, Public Law 89-456 and has jurisdiction of the.
 parties and the subject matter.

 Claimant-was employed by Carrier, or) June 20, 1973. By Award Nc-. - 86 of this So.;rd, Cla irnant was reinstated to service, withurrt compensation for time lost, based on infractions which lie had been involved in prior to that time. As a result of that Award, he wasinstructed to contact Carrier's office for, a reinstatement physical examination prior to returning to service. On November, 1, 1985, Mr. Lakey submitted to and did take a urinalysis test, as

2 part of his physical examination and that test showed positive for marijuana. As a result, Claimant was charged with violation of Rule G - Alleged Use -of an Illegal Drug, Narcotic or, Other Substance and was offered the opportunity for -a hearing. His violation of- Rule G was involved. The- hearing was held on December 4, 1985 and, subsequently, he was advised on December 10 that. as a result of the hearing and investigation, he had beer, terminated from Carrier's service. The record indicates that, in the course of the investigation, Claimant's only defense was that lie was in the presence of others who smoked marijuana and he could only have been exposed to the substance on a "passive" basis. The: record also indicates that Mr. Lakey, in the course of the investigation, did offer participation in the Employee Assistance Program for drug rehabilitation purposes. He indicated, at that tine, that he was interested in participating in that Program but the record shows he never did indeed avail himself of that opportunity. '


It is noted that the Board may not make credibility findings as the parties are well known. In this instance, the Hearing Officer, determined that Claimant's statements, that he never smoked mar-ijuana,were not to be credited and, also, the fact of hi, alleged passive inhalation, in order for the test to be poaiti.a, was also not credited. Thus, the Board is simply faced with ttrf problem of whether, indeed the guilt for, failure to pas-s tt~e reinstatement physical examination was -appropriate in terms of the


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3 remedies sought by Carrier. As the Board views it, there is no question but that Claimant was required to pass a reinstatement

 physical examination in order to go back to work. He did not do -
 so. Furthermore, he did not avail himself of the opportunity to
 participate in the Drug Rehabilitation Program which might have
 affected his opportunity to return to work. There is no recourge -
 but to deny the claim.
 AWARD _

      Claim denied.


                _1~_

                I. M. Lieberrnan.-Neutral-Chairman


_ _______ ___ ____ __ _ _ ~_r~-_ ~________ -
 R. J. St art Carrfer^ htenrber C.- F. Foose -Em le ee Member-
 p Y
 San Francisco -California
 Sept ember·~ 1988 -