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                            Carrier File No. 14-99-0118

                            Organization File No. 210-1312-9918.CLM


              ( BROTHERHOOD OF MAINTENANCE

              ( OF WAY EMPLOYES


              (


Parties to Dispute: ( -and
 (
 ( BURLINGTON NORTHERN SANTA FE RAILWAY
 (

 Statement of Claim: 1. The Carrier violated the Agreement when on July 13,
 1999, Mr. M. E. Davis was dismissed from service for
 alleged violation of Rule 6.2 and Rule 12.0 of the
 Carrier's policy on the Use of Alcohol and Drugs,
 effective October 15, 1996, in connection with his
 allegedly testing positive for a controlled substance for a
 second time on August 30, 1999.
 2. As a consequence of the Carrier's violation referred to
 above, Mr. Davis shall be reinstated with seniority,
 vacation, all other rights unimpaired, the discipline shall
 be removed from the Claimant's personal record, and he
 shall be compensated for all wages lost in accordance with
 the Agreement.
                              Public Law Board No. 4244

                              Award No. 258

                              Case No. 265

                              Carrier File No. 14-99-0118

                              Organization File No. 210-1312-9918.CLM


                      INTRODUCTION

This Board is duly constituted by agreement of the parties dated January 21, 1987, as amended, and as further provided in Section 3, Second of the Railway Labor Act ("Act"), 45 U.S.C. Section 153, Second. This matter came on for consideration before the Board pursuant to the expedited procedure for submission of disputes between the parties. The Board, after hearing and upon review of the entire record, finds that the parties involved in this dispute are a Carrier and employee representative ("Organization") within the meaning of the Act, as amended.

                        FINDINGS

On August 27, 1998, the claimant, M. E. Davis, tested positive for a controlled substance and was medically disqualified from service by the Carrier on September 22, 1998. On November 6,1998, the claimant was released by the Carrier to return to duty. At that time, the claimant was informed that he would be subject to periodic drug and/or alcohol testing for a period of five years from the date of his return to service. Additionally, the claimant was informed that he would be subject to dismissal for a second violation of the Carrier's Drug and Alcohol Policy within a ten-year period.
 A follow-up breath alcohol test conducted on June 30, 1999, revealed that the claimant tested positive for the presence of alcohol. As a result, the claimant was dismissed from 2

                                            Public Law Board No. 4244 Award No. 258 Case No. 265 Carrier File No. 14-99-0118

                              Organization File No. 210-13I2-9918.CLM


service on July 13, 1999, for violating Rules 6.2 and 12.0 of the Carrier's Policy on the Use of Alcohol and Drugs. For the following reasons, the Board finds that the Carrier properly


dismissed the claimant from service.

Rule 12.0 of the Carrier's Policy on the Use of Alcohol and Drugs provides, in part, as follows:


          Any one or more of the following conditions will subject employees to dismissal:


          (a) A repeat positive test either for controlled substances or alcohol obtained under any circumstances. Those employees who have tested positive in the past ten (10) years will be subject to dismissal whenever they test positive a second time and shall not be eligible for reinstatement under section 5.0


      The Organization contends that the Carrier violated the Agreement, in particular Rule

13 and Appendix #11, when it denied the claimant an investigation prior to his dismissal. The Organization cites that section of Rule 13 which provides: "any employee who has been in

service more than sixty (60) days will not be disciplined without first being given an
 investigation, which will be held within thirty (30) days if held out of service."

The Carrier contends that the claimant was properly dismissed from service according to the June 24, 1991 Letter of Understanding and Rules 12.0 of the Policy on the Use of

Alcohol and Drugs. The June 24, 1991 Letter of Understanding provides, in pertinent part, as follows:


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                                            Public Law Board No. 4244 Award No. 258 Case No. 265 Carrier File No. 14-99-0118

                              Organization File No. 210-1312-9918.CLM


                          ~s~


          9.0 Dismissal


          Any one or more of the following conditions will subject employees to dismissal for failure to obey instructions:


          (a) A repeat positive urine test for controlled substances obtained under any circumstances.


              Those employees who have tested positive in the past ten (10) years would be subject to dismissal whenever they test positive a second time.


          (b) Failure to abide by the instructions Medical Department/Employee Assistance Program regarding treatment and/or follow up testing.


          Effective June 1. 1991, an employee who is subject to dismissal under the aforequoted rsic) provisions of Rule 9 shall be notified in writingbv Certified Mail. Return Receipt Requested, to the employee's last known address. copy to the General Chairman, of termination of his seniority and employment. The notice shall contain a[n] adequate statement of the circumstances resulting in the employee's termination of employment.


          (Bold in text; underlying supplied).


      The record is clear that the claimant tested positive for a controlled substance and


alcohol twice within a period of approximately ten months. The June 24, 1991 Letter of

 Understanding specifically provides that "[tjhose employees who have tested positive in the

 past ten (10) years will be subject to dismissal whenever they test positive a second time."

 Additionally, the June 24, 1991 Letter of Understanding provides that an employee will be

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                                                Public Law Board No. 4244 Award No. 258 Case No. 265 Carrier File No. 14-99-0118

                                  Organization File No. 210-13I2-9918.CLM


      subject to dismissal for failure to abide by the instructions of the Carrier's Medical Department regarding follow up testing. Therefore, as a result of two positive drug and alcohol tests

      during a ten-year period, and his failure to follow the instructions of the Medical Department set forth in his November 6, 1998 notice of reinstatement, the claimant is subject to dismissal in accordance with the Carrier's rules. Moreover, the Board finds that the claimant was


      properly notified, in accordance with the June 24, 1991 Letter of Understanding, of his

      dismissal by the Carrier. By that letter of understanding, the parties agreed that the Carrier was not required to conduct a formal investigation prior to dismissing an employee such as the claimant who tests positive a second time for a controlled substance within a ten (10) year


      period. For each of these reasons, the claim must be denied.


                            AWARD

The claim is denied.

.6- &Jmt~',

homas M.-Rohling, CarrierAmber R. B. Wehrli, Employee Member

                      u

                      nathan I. Klein, Neutral Member


This Award issued the/ ofTG _h~, 2004.

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