,PUBLIC ILAW BOARD NUMBER 3445
PARTIES 'TO' DTSPIJTE

 STATEMENT OF CLAIM
Award Number; 71

 Case-Number: 71

 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 ' And

 . · SOUTHERN-RAILWAY COMPANY' '

 Claimant, T.L:Holland, 919 Washington Avenue, Talladega, AL 35160_ was dismissed on March 23, 1989 far alleged conduct unbecoming an employe and violation of Norfolk Southern's Drug Policy:''61aim as filed in accordance with Railway Labor Act and agreement provisions. Employes request reinstatement with pay for all lost time with vacation and seniority rights unimpaired.

 FINDINGS
Claimant entered the Carrier's, service on Octobex,8, 19$1. At the tine of the events in issue here, Claimant was assigned to the Birmingham;" Alabama Material Yard, ,

 By letter date March 1, 1989, Claimant was directed to attend a formal investigation on charges he violated the Carrier's Drug Policy and committed acts unbecoming an employee. The formal investigation was held March 13, 1989, Claimant was dismissed based on establishment of a violation of the . Drug Policy and conduct unbecoming.

 The issue to be decided in this dispute is whether Claimant was dismissed for just cause under the Agreement; and if not, what should the

 remedy be.
of cocaine. The Carrier learned of this matter on December 27, when
 Claimant's father called to mark Claimant off. On February 3, 1989,
 Claimant pleaded guilty to the. charge of possession of cocaine and was -
 sentenced to 5 years'.,probation andifined $1,000.-

 At the formal investigation, 'Claimant testified that he possessed the cocaine in an~effort. to.protect his brother, who was the true owner of the cocaine. His brother, who was in Claimant's car when the police stopped

 ,them, was-on~probat;-on_and would have faced severe penalties if found to be in-possessioo.'of.il,lega~ drugs!1;~laimant testified ,tbat he took his,' brother's` cocaine and pretended it was his own.so his brother would not "take the rap. '

 The Carrier's Drug, Policy provides:

 The policy on drugs of Norfolk Southern Corporation and its railroad subsidiaries does not permit the employment of persons who use drugs which may impair sensory, mental, or physical functions: All physical _'

 ,

 examinations required of empldyees of the Corporation and its subsidiaries include a drug screen urinalysis. An employee whose urine has tested.positive for a prohibited substance will not be. permitted to perform service until he or she provides a sample that

 tests negative'. While an employee withheld from service'-by the _'

 Medical Department under this policy is not thereby, being subjected to'·,
 discipline, disciplinary action will be taken if that employee fails
 timely to provide a urine sample that tests negative.

 Employees who are convicted in connection with incidents` involving off- 1 the-job drug activity will be considered in violation ol'this policy.,"',

The position of the Carrier is that Claimant was dismissed for just

cause. The Carrier maintains that Claimant's guilty plea and conviction are

clear evidence of his violation of the Drug Policy and constitutes conduct -

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unbecoming an employee. In light of the terms of the poliqy and the serious
'threat drugs! produce,,.(zs~recogniz,ed~by this Board and''others) the Carrier contends that 4ismis§al' 'was warrani~od.

 The position of the Organizatj,on .is that Claimant was unjustly dismissed, asserting 'that the discipline of dismissal is unduely harsh in light of Claimant's possessing the cocaine only in an effort to·protect his brother. The Organization also cites Claimant's substantial punishment in court (5 years.' probation and $1,OOOtfine) as well as Claimant's embarrassment and shame as proof .that he has suffered considerably already. The lOrganization also asserts that Claimant was uhaware that~hewasdue a fair and impartial hearing before the Carrier could dismiss hinC

 After review of·the entire record, the Board modifies.Claimant's discipline to reinstatement with seniority unimpaired, but without backpay. Reinstatement is conditioned on a successful completion ofa return-to-urork
physical examination. ·

 The Carrier has sustained its burden o£ proof by establishing, throul;h substantive credible evidence in the record, that Claimant both possessed cocaine and pleaded guilty to related charges. Claimant's action caused harm,to the Carrier's reputation and challenged its Drug Policy. Moreover, any involvement with drugs by a Carrier employee runs the. risk of serious or
disasterous harm to the Carrier, fellow employees and the public. The Carrier's Drug Policy is. sound and is in no way dimished by the decision in this matter. -The Poliv'is an intelligent and reasonable response to the

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drug menace and the concept and substance has been sustained in the past. -
 However, based on the unique facts and circumstances ip this matter, the Board finds that the more appropriate discipline is reinstatement without back pay. This reinstatement can oply follow a successful completion of a physical examination.'~The resolution of this case'maynot be construed as

 precedent.in future cases because of. the unique factual nature of the case.

 AVARD
C1airre disposedl'of per Firxdi`4gs ~hereiii~

 Neutral Me ber

 Carrier Member

 Organization Member,