Public Law-Board No. 4161
Parties to Dispute
Brotherhood of Maintenance of )
Way Employees ) Case No. 38
vs ) Award No. 27
Burlington Northern Railroad )
STATEMENT OF CLAIM
We ask for your consideration for reinstatement of
all seniority unimpaired for Mr. D. M. Fluegge.
FINDINGS
The Claimant received a notice to attend an investigation
in connection with his alleged state of intoxication while
covering his assignment. The Claimant was charges with violation
of Rules 565 and 566 of the Carrier. Following an investigation
the Claimant was dismissed. The dismissal was appealed by the
organization on property with the request that the Claimant be
restored to service on leniency basis.
The following Rules apply to this case.
Rule 565
The use of alcoholic beverages ...by employees subject
to duty or their possession or use while on duty or on
company property is prohibited.
Rule 566
Employees must not report for duty under the influence -_,
of any alcoholic beverage, intoxicant, narcotic, mari
juana, or other controlled substance or medication in
cluding those prescribed by a doctor, that may in any
way adversely affect their alertness, coordination,
reaction, response or safety.
-2-
Public Law Board No. 4161 (Award No. 27; Case No. 38
The Claimant was called to work because of a derailment
of four coal cars. Evidence produced at the investigation shows
that he reported to cover this assignment under the influence of
alcohol. The Claimant admitted this while testifying at the
investigation. After the Claimant was discharged the Organization
appealed this discipline. Neither the Claimant, in view of
evidence of record, nor the Organization, could deny that the
Claimant had a drinking problem. During the appeal process,
however, the Organization requested that the Carrier give some
"...consideration for reinstatement (of the Claimant) will all
seniority unimpaired" because of the Claimant's inpatient status
at an alcohol treatment facility. In denying this request the
Carrier based its decision on a prior dismissal of the Claimant
for violation of the same Rules at bar, and reinstatement for
that dismissal on leniency basis. In effect, the Carrier argued
that its own attempts to assist an employee with a dependency
problem can go only so far, given the minimal efforts at reform
present in the instant case.
The issue of a Carrier's right and obligations dealing with
leniency reinstatements following a second Rule G type violations
(here designated as Rules 565 & 566 on this property) has been
addressed on numerous occasions by arbitral tribunals in this
industry. First of all, there is no dispute over the right of
Carrier's to discharge employees for Rule infractions dealing
with the use of alcohol and drugs while on the job. Safety of
employees is an overriding consideration here.The issue of
leniency itself is solely at the discretion of a Carrier and
does not fall under the purview of the jurisdiction of a Board
such as this (See
Public
Law Board 3460, Award 46; Public Law
Board 2746, Award 9; Public Law Board 3321, Award 8). It is true _
that the Claimant re-entered a drug treatment program a second
time. Despite this, however, the Carrier has concluded that -
as a matter of general policy it will allow no leniency reinstate-
Public Law Board No. 4161-(Award No. 27; Case No. 38)
ment after a second discharge result of violation of its no
drinking Rules. This Board has no authority to overturn such
decision by the Carrier. Apropos here is language found in
Award 8 of Public Law Board 3321 which is cited here as precedent:
" .(In that case) the Carrier contends in order for
(a) rehabilitation program to have an efficacy at
all employees must understand that their participation
in the program, and any subsequent failure, can only
carry with it the inevitable consequence of dismissal
so that employees clearly understand that they are being
given "one last chance" to rehabilitate themselves and
prove their worth to their employer. Claimant, by his
own admission, was in violation of Rule G, had previous
experience with the program, and knew its consequences.
Nevertheless, he failed to live up to the standards
required of him. However sympathetic we may be for a
Claimant's condition, we are without the authority to
intervene with the results arrived at on property".
Other arbitration Boards in this industry have drawn similar
conclusions from parallel fact patterns (See Public Law Board
3408, Award 35; Public Law Board 3656, Award 1). This Board cannot
find sufficient grounds to diverge from the precedent found in
these earlier Awards and it must accordingly deny the claim.
AWA
-The claim is denied.
dward L.-Suntrup, Neutral Member
T
xine
M. T
mb rman, Carrier Member
Br
76
G. Glover, Employee Member
Date: