The organization contends that Carrier improperly dismissed Claimant. It maintains that the July 23, 1985 incident between Claimant and Thorne is an everyday occurrence on the property involving a disagreement between two employees. It asserts that the testimony provided at the hearing concludes that Claimant did not initiate any physical contact. It argues that Claimant was unintentionally pushed by Thorne causing him (Claimant) to fall backwards over the rail. It further argues that Thorne was assessed a thirty day suspension for the incident while Claimant was dismissed.
The organization further addresses the charges against Claimant regarding the positive test results for marijuana. It states that Carrier did not require the urinalysis testing until 7:55 a.m. on July 24, 1985, sixteen hours after the incident on July 23, 1985. It argues that if Carrier determined that such testing was necessary, it should have been conducted immediately or shortly after the incident occurred. Additionally,-it asserts that the results of the urinalysis test do not prove that Claimant was under the influence of marijuana while on duty on July 24, 1985. It contends that evidence offered by both the Claimant's and the Carrier's witnesses reveals that Claimant showed no signs of impairment on the date of the incident nor on the date he was tested. Although Claimant admitted use of marijuana on the evening of July 23, during off duty hours, it argues that Claimant could not have been impaired when he submitted to the urinalysis test,
due to the lack of medical evidence. In the organization's view, carrier improperly based its determination that Claimant was under the influence-of marijuana solely on the results of the urinalysis test. Accordingly, it asks that the claim-be sustained and Claimant be made whole for all wages lost.
Carrier, on the other hand, contends that the testimony at the hearing'-concludes that Claimant 'was in ari angry~state and initiated a physical confrontation with his foreman. It asserts that Claimant provoked the altercation and was clearly the aggressor. It concludes--that such behavior between two employees -on the property can not be tolerated. It maintains that such behavior is a dismissable offense which is not seen by the Carrier as a simple
disagreement,-as the Organization alleges. -- °' -Additionally,- Carrier contends that since the urinalysis-test showed positive on-the marijuana screening, Claimant was eubject -to-discipline-for violating Rules 565 and 566. It contends that Claimant admitted- that he had used-~illegal "drugs` the evening',of July 23, 1985 and test results proved that there were metaboiites of -THC in his urine on the following day.- It asserts=that although Claimant may not have exhibited any outward- signs of drug intoxication, medical evidence has shown that there maybe no external signs that can be detected by a lay person, and as such cannot be used as a defense by the Organization supporting Claimant's innocence. It concludes that the results of the test were sufficient to show that the Claimant was under the influence of marijuana and thus in violation of Rules 565 and 566. In the
organization's view, dismissal is an appropriate penalty and asks that the claim be denied.
A thorough review of the transcript convinces the Board that the discharge of Claimant is unjustified. While the evidence does support Carrier's determination of guilt in the altercation incident, dismissal is excessive in this case. Under these particular- circumstances, a suspension from July 23, 1985 to the date of this Award is justified. However, due to a settlement of injuries between Claimant and Carrier, no monetary claim is provided in this Award. This suspension serves as notice to Claimant of the seriousness of the incident, who would be welladvised to avoid any time of similar behavior in the future.
As to the charge regarding the use of marijuana, this BoardAccordingly, and for the foregoing reasons, the claim is sustained to the extent indicated in the Opinion.