STATEMENT OF CLAIM: Carrier's decision to remove former Texas (Southern) Division Trackman L. C. Martinez from service, effective March 11, 1988 was unjust.
Accordingly, Carrier should be required to reinstate Claimant Martinez with his seniority rights unimpaired and compensate him for all wages lost from March 11, 1988.
FINDINGS: This Public Law Board No. 4244 (the "Board") upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended. Further, this Board has jurisdiction over the parties and the subject matter involved.
In this dispute former Texas (Southern) Division Trackman L. C. Martinez (the "Claimant") was notified to attend a formal investigation on March 11, 1988 concerning his alleged failure to follow instructions contained in letters dated November 3, 1987 and January 14, 1988 issued by Dr. R.IC. Khuri, the Carrier's Medical Director, and his alleged failure to satisfactorily pass a required medical examination. The Claimant's conduct involved possible violation of Rules 2, 3, 11, 14, 16, 26 and 31B of the Carrier's General Rules for the Guidance of Employes, and Paragraph 6.0 Medical Examinations, Page 7, of the Carrier's Policy on Use of Alcohol and Drugs. Pursuant to the investigation the Claimant was found guilty of violating the cited rules and he was removed from service.
The evidence of record showed that on September 24, 1987 the Claimant was notified that he was being recalled to service by the Carrier. He was further advised that he was required to take a physical examination and urine drug screen prior to his return to service. The Claimant complied with these requirements on October 2, 1987.
Division Engineer W.K. Hallows testified that the Claimant's drug screen tested positive for amphetamine, a substance controlled by law. The Claimant was advised of this result in a letter dated October 20, 1987 and was further advised in pertinent part:
The record shows that the Claimant submitted for a second drug screen analysis. The Claimant's second analysis tested positive for marijuana. Consequently, the Claimant was sent a letter dated November 3, 1987 informing him of the test results and that he was medically disqualified from service until he provided a negative urine specimen. He was further advised that if he failed to provide a negative urine specimen within 90 days of his receipt of the November 3 letter, the Carrier's general manager and superintendent would be informed of the test results, and his case would be handled as a disciplinary matter.
Hallows further testified that the Claimant was notified by Dr. Khuri in a letter dated January 14, 1988 that the Claimant had until February 4, 1988 to provide a clean urine specimen. If he failed to do so, the matter would be handled as a disciplinary action. He was further encouraged to contact the Carrier's Employee Assistance Counselor in his area if he had a problem "ridding himself of drugs". The Carrier then established through Hallows testimony that the Claimant did not comply with Dr. Khuri's instructions as set forth in the January 14, 1988 letter.
The Board has reviewed all the testimony and evidence of record. The Board finds .that the Claimant was accorded a fair and impartial investigation and the Carrier complied with all the terms of the collective bargaining agreement. The Board further finds that the Claimant failed to furnish a clean urine specimen
by February 4, 1988 as instructed by the Carrier. Moreover, the Claimant testified at the formal investigation that he failed to comply with the Carrier's instructions. As supported by Award No. 25 of the Board, and Awards No. 415 and 426 of Public Law Board No. 1582, there is no justification to set the discipline aside.