Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern and Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:


FINDINGS AND OPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and E^.r:oyees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the dispute herein.

 The Claimant, Mr. Robert R. Martinez, was hired by the Carrier on July 6, 1999. His personal record shows that he was assessed a 30-day record suspension, and a one-year probationary period, on July 18, 2001, for being absent without leave for more than five consecutive days.

 On November 14, 2001, while on duty, he was selected for a random drug and/or alcohol test. The result was positive for the metabolite of marijuana.

 On November 30, 2001, the Claimant was issued a notice of investigation by General Manager Greg A. White, reading in part as follows:

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 Case No. 282

 The investigation was first set for December 5, 2001, but by agreement of the Parties was postponed to and held on January 24, 2002. A transcript of evidence and testimony taken at the investigation appears in the record.

 There is no dispute that the test was positive for the metabolite of marijuana. The Claimant denied that he had used marijuana while on duty, and attributed his positive test to his attendance at a party on the previous weekend.

 On February 20, 2002, as the consequence of the investigation, Mr. White sent the Claimant a notice of discipline, reading in part as follows:

The Rules and Sections referred to in Mr. White's letter read as follows:

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The Organization promptly appealed the Carrier's disciplinary decision to is General Director - Labor Relations, who denied the claim It therefore comes before this Board for review and a final decision.

 The Organization presents a somewhat intricate argument on the Claimant's behalf. It points out that the Claimant was dismissed from service pursuant to the Carrier's Policy for Employee Performance Accountability (PEPA), which defines a first-time violation of MWOR 1.5 as a "serious violation," which may result in dismissal from service if it is the second serious incident within a 36-month review period. However, the Organization argues, a provision in the PEPA states that if the PEPA conflicts with the Carrier's alcohol/drug policy, the latter takes precedence over the PEPA. That being true, it reasons, the alcohol/drug policy provides that a first-time offender is referred to the Carrier's Employee Assistance Program, and upon meeting all the requirements of that program, and finally presenting a negative return-to-work test for alcohol and drugs, the employee will be returned to work. The Organization goes on to state that the Claimant in this case has undertaken the required steps, and after fiill compliance therewith, should be returned to service.

 The Carrier's rebuttal is more simplistic. It points out that Section 7.5 of its alcohol/drug policy reads as follows:

The Carrier then refers back to the Claimant's disciplinary entry in 2001 for being absent without leave for more than five consecutive work days, and the application of a three-year probationary period following that offense. It then turns to this provision in the PEPA:

Thus, the Carrier asserts, only five months after the previous disciplinary action, the Claimant tested positive for marijuana use on a random drug test, which constitutes a second serious offense within the review period, which warrants his dismissal from service.

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 Public Law Board No. 4244 Award No. 274
 Case No. 282

 The Board questions whether absence without leave for more than five consecutive work days constitutes a "serious rule violation" as defined in the PEPA. Among the list of "Serious Rule Violations" defined in Appendix B, only one definition addresses absences:

But the Parties seem to be in agreement that the Carrier's Policy on the Use of Alcohol and Drugs takes precedence over the PEPA. The Carrier posits that Section 7.5 of that Policy permits it to consider drug violations in conjunction with prior violations of the Carrier's rules in assessing appropriate discipline. Although the Board does not have before it the disciplinary decision in the 2001 case, since it is only summarized in the Claimant's personal record document, probationary review periods generally provide that subsequent infractions of its rules during the review period may subject the employee to dismissal.

 The Board is compelled to advise the Parties that it does not find iself bound to walk in lockstep with either the PEPA or the Carrier's Policy on the Use of Alcohol and Drugs. These are unilaterally promulgated Carrier policies, and while they are quite useful in establishing uniformity in the application of disciplinary procedures and the United States Department of Transportation's regulations for the control of alcohol and drugs use in railroad operations, respectively, they do not rise to the level nor carry the force of the agreements negotiated by the Parties, to which they are bound. But the PEPA and the Policy are of practical value in establishing a degree of order and fairness in dealing with these very important matters.

 The Claimant is not a long-time employee with a generally good record. He had only 28 months of service with a prior disciplinary entry. He was clearly guilty of the rule infiractions with which he was charged, and he did not challenge the result of the drug test. Although the 13r_::n:aation's position has substantial merit and appeal, the Board holds that the Carrier has the better position.

 Although the Board's Neutral Member might not have applied the same degree of discipline, if he had been the person making the decision, neither can we find that the severe penalty of permanent dismissal is so unconscionable as to warrant its reversal.

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 Public Law Board No. 4244 Award No. 274
 Case No. 282



                        U~ Pu,~

                    Robert J. Irvin, Neutral Member


R. B. Wehrli, Employe Member Thomas M. I(ohling, Carrier Mber

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