Upon the whole record, after hearing, the Board finds that the 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.
The record indicates that on June 28, 1989, Claimant was involved in a personal injury situation. As a result of that injury, he was required, among other things, to submit to toxicological testing. The report back indicated that he tested positive for cocaine, and furthermore the confirmatory test indicated the same result. In addition, Claimant was charged with dishonesty in his telling an untruth to
Carrier's officials with respect to having a current driver's license, which he needed as part of his job, when in fact he did not have one. Following the investigation, Claimant was found guilty of the charges and dismissed from Carrier'Z service. The record indicates that as part of Carrier's normal policy, it would consider reinstating an employee to service if he participated in Carrier's Employee Assistance Program and received a favorable recommendation from that program. In this instance, since this was Claimant's first drug violation, he was offered the opportunity to meet with the Employee Assistance Counselor and arrange for entrance into the program. Several appointments were set up for him to meet with the Assistance Counselor and he did not appear, and in fact, over a two-year period following his dismissal he did not attempt to contact the counselor to enter the program.
The record is clear and unequivocable with respect to the fact that Claimant was found to have substantial traces of cocaine, as indicated by the toxicological tests. Further, there is no doubt but that he falsified his response to Carrier's questions concerning his driver's license. Petitioner takes the position, however, that the merits need not be examined since the Carrier violated Claimant's due process rights. The Organization insists that Claimant was not accorded a proper investigation since the Officer who charged him with the violation also testified against him, and finally sent him the letter indicating that he was dismissed Carrier on the other hand insists that there was adequate due process accorded Claimant, and there was no violation of the rules by the transgression alleged by the Organization.
From the standpoint of due process, the fact that the same Carrier official levied the charge against Claimant, and then testified against him, is not at all uncommon, nor is it in violation of the rules with respect to investigations. The fact that he
3 signed the letter indicating the dismissal as a penalty for the violations, also is not
at all uncommon. In this case the same officer did not act as the hearing officer, -