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 Employees ("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, Trackman Cody L. Banister, entered the Carrier's employment on July 6, 1999. The Carrier's Southwest Division General Manager directed him to report for an investigation on April 15, 2003, (later postponed until April 23, 2003),

The investigation began at 4:00 p.m. on April 23, 2003. The Claimant had not appeared at that time. The investigation was recessed until 4:25 p.m. During the interim, a search was made in the vicinity of the building, and unsuccessful attempts were made to contact the Claimant

 plb4244_306
 Public Law Board No. 4244 Award No. 306
 Case No. 315

 by telephone. The investigation was reconvened at that point. The Claimant was represented in absentia by the Organization's Vice General Chaitinan.

 The Carrier's sole witness, Assistant Roadmaster William Gomez, offered in evidence a copy of the laboratory Test Result Report for the Claimant's Return to Duty drug test performed on March 24, 2003. The test yielded a positive result for the presence of amphetamine and methamphetamine well in excess of the cut off levels prescribed by the Federal statutes which govern Federally mandated tests. The Carrier's alcohol and drug testing rules are consistent with Federal statutes.

 Mr. Gomez also offered in evidence a copy of a letter sent the Claimant by the Carrier's Manager Medical Support Services on March 31, 2003, which enclosed a copy of the test results, and which removed him from the Carrier's service.

 After accepting these documents into the record, another search was made for the Claimant, and telephone contact was attempted, again without success. Because of his nonappearance, no rebuttal evidence was presented on his behalf. His representative asked that the Claimant be offered a first-time waiver pursuant to Sections 7 and 8 of the Carrier's Policy on the Use of Alcohol and Drugs.

 A transcript of testimony and evidence presented in the investigation was prepared, and appears in the record before this Board.

 On May 14, 2003, the General Manager advised the Claimant, in writing, as the result of the investigation, that he was dismissed from the Carrier's service for violation of Maintenance of Way Operating Rule 1.5 and Section 3.1 of the BNSF Policy on the Use of Alcohol and Drugs. These provisions read:

 Maintenance of Way Oneratinn2 Rule 1.5




p164244_306 2
 Public Law Board No. 4244 Award No. 306
 Case No. 315

 BNSF Policy on the Use of Alcohol and Drugs Section 3.1












The General Manager's decision was promptly appealed by the Organization to the Carrier's Labor Relations Department. The appeal was denied, and the matter now comes before this Board for adjudication.

 The Claimant's personal record indicates that he had been recalled to work in March, 2003, after being fiirloughed since September 21, 2001. Section 4.7 of the BNSF Policy on the Use of Alcohol and Drugs requires that employees returning to work after an absence greater than six months must pass a urine drug screen and/or a breath alcohol test.

 The record indicates that the Claimant did not avail himself of the Carrier's policy which permits an employee testing positive for the first time to enter the Carrier's Employee Assistance Program This Program permits an employee to return to the Carrier's service after evaluation, education, and necessary treatment. It was the Claimant's responsibility to contact the Program within five days after his removal from service. This he failed to do. Section 8.3 of the BNSF Policy on the Use of Alcohol and Drugs provides:

The Claimant did not appear at the investigation afforded him, after being duly notified. He therefore did not avail himself of the opportunity to offer any defense against the positive test result, notification procedures, or his failure to contact the EAP. The Board has no alternative but to deny the claim.

 plb4244_306 3
 Public Law Board No. 4244 Award No. 306
 Case No. 315



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                  Robert J. Irvin, Neutral Member


R. B. Wehrli, Employe Member Tkemas-1\4-Reh-ling, Carrier Member
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 Date

 pib4244_306 4