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.

 On September 21, 2000, the Claimant, Mr. Arnold J. Fernandez, an employee with more than 19 years' service, was working as a Machine Operator in the Carrier's Maintenance of Way Department. He was operating a back hoe on that date, which became overbalanced and overturned on a sloping surface. The Claimant suffered no injury from the accident, but the circumstances required that "probable cause" testing for alcohol and/or drugs be performed. The tests revealed the presence of both alcohol and a controlled substance.

 In accordance with the Carrier's Policy on the Use of Alcohol and Drugs ("Policy"), the Claimant was issued a conditional suspension, based upon his first-time violation of the Policy, placing himself in the Carrier's Employee Assistance Program, and his full compliance with the program and all instructions issued by the Employee Assistance Manager. He was directed to contact the Employee Assistance Manager for evaluation and treatment, and advised that treatment must commence within 45 days from the start of his suspension. He was fiurther

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 Public Law Board No. 4244 Award No. 308
 Case No. 318

 advised that he would be required to receive a favorable recommendation from the Employee Assistance Manager for return to active service within 60 days from the date of his suspension.

 On October 4, 2002, the Carrier's Division Engineer sent the Claimant a letter advising that an investigation would be scheduled for the following reason:

The investigation was held on November 7, 2002. The Claimant was competently and professionally represented by the Organization's Vice General Chairman. A transcript of testimony and evidence offered therein appears in the record before this Board.
after he was removed from service for treatment), from the Carrier's Manager Medical Support
 Services, advising that he had failed to comply with instructions given him in connection with
 treatment. He was required to contact Mr. Jim Harrell, the Manager Employee Assistance
 Services, at his earliest opportunity, and to be in compliance with the Employee Assistance
 Program by September 16, 2002. The letter further advised that failure to comply with Mr.
 Harrell's requirements would result in an investigation.

 Roadmaster John Palacios testified in the investigation as a witness for the Carrier. He stated that on the same date the above letter was sent the Claimant, the Claimant failed a breath test for alcohol. That prompted the Manager Medical Support Services notifying the Claimant's supervising officer to arrange for the investigation which was held on November 7.

 Mr. Palacios also read into the record a letter from Mr. Harrell, cataloging the Claimant's failure to comply with his instructions. This letter reads, in part, as follows:

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 Public Law Board No. 4244 Award No. 308
 Case No. 318

The Claimant testified that he entered a rehabilitation program within a few days after he tested positive for the presence of alcohol. He remained in that program for 30 days, but relapsed within two or three weeks after discharge. He reentered the program for a 14-day period, but relapsed again after "a couple of months," which he attributed to domestic problems. During this period, he said he was actively engaged in A.A. meetings and was seeing a psychologist, having been diagnosed as having manic-depressive psychosis. He had been taking prescribed medication for that condition, but indicated that, due to his financial straits, he had not used medication in eight months. He asked Mr. Harrell to permit him to reenter the program, and his request was favorably acted upon.

 From the Claimant's description of events, the Board concludes that this latest round of treatment involved in-patient therapy. Because, he related, of an incident involving a visit from his wife in the privacy of his room, proscribed by the facility's rules, he was told to leave. That exacerbated his depression and, as the consequence, he somehow obtained an alcoholic beverage and began drinking, which resulted in his discharge from the facility. Because of this occurrence, he met with Mr. Harrell and was given another chance, provided that he attended 90 A.A. meetings in 90 days. He told Mr. Harrell he needed to reenter treatment, but his health insurance was expiring and he could not afford the high cost of in-patient treatment. He said he was on a waiting list for the Salvation Army's in-patient program, which he could afford. He testified that he had been going to A.A. meetings five days per week and an Alanon meeting once a week.

 He further testified that he had been attending a Salvation Army out-patient program twice a week, pending admission to its in-patient program. He has also sought counseling with a Fresno (California) County mental health program, which charges a nominal fee for their services. The Claimant also admitted that he had failed to submit the required verification to attest his faithful attendance at A-A. meetings, and there were extended periods when he did not stay in contact with Mr. Harrell. He said he still possessed the documentation of his attendance and could supply it to Mr. HarrelL He expressed hope that he would soon be admitted to the Salvation Army's in-patient program. He also indicated that some of his domestic problems had been alleviated. He further expressed optimism that anticipated further treatment would result in his becoming a "worthy employee" again.

 On December 4, 2002, the Carrier's Conducting Officer notified the Claimant that he was dismissed from the Carrier's employment for his failure to abide by its instructions regarding treatment, education, and follow-up testing, in violation of Maintenance of Way Operating Rule 1.13 and Section 7.9 of the Policy. These read:

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 Public Law Board No. 4244 Award No. 308
 Case No. 318

 Maintenance of Way Operating Rule 1.13


Policy Section 7.9



























The Organization promptly appealed the Carrier's disciplinary decision to its Labor Relations Department. The Organization initially requested a leniency reinstatement. It states that although he has suffered some setbacks, the Claimant has made great strides in overcoming his illness, and would make a good employee. At the time written, December 12, 2002, the Organization argues, he is clean.

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 Public Law Board No. 4244 Award No. 308
 Case No. 318

 The Organization further argues that the discipline is extreme, unwarranted, and unjustified, and is not supported by the record. There are no flagrant violations of the Carrier's rules.

 The Carrier asserts that its disciplinary decision is fully warranted. More than two years before, the Claimant signed a waiver and was required to comply with instructions from the Employee Assistance Program Coordinator. The Claimant has not complied with those instructions. The Carrier points out that he has had two years "to clean up his act," and has failed. The Carrier notes that the Claimant testified that he was well on his way to sobriety, but the Carrier has been extremely patient and the Claimant has repeatedly failed. His dismissal is warranted.

 The Carrier fiirther acknowledged the Organization's request for a leniency reinstatement. It asserts that he has already been given a leniency reinstatement, but the Claimant has failed to meet the requirements set out in the reinstatement agreement. The Carrier states it is unwilling to try it again. The Board concludes that the "reinstatement agreement" refers to the provisions of the Employee Assistance Program, which permit a first-time alcohol/drug offender to take a conditional suspension pending successfid completion of the Program

 The Board has carefully studied the transcript of testimony and evidence taken at the investigation, and has considered, with more than a little sympathy, the arguments of the Parties.

 With respect to the Organization's request for leniency, the Board points out that a Board such as this cannot issue a ruling on the basis of leniency. Decisions with regard to leniency are reserved for the Carrier. See, e.g., Award No. 22, Public Law Board No. 6204, and Third Division Award 20236, wherein the Board stated the general arbitral principle with regard to requests for leniency reinstatement:

The record makes it quite clear that the Claimant has been given remarkable latitude with respect to the time limits prescribed for rehabilitation. The Carrier's notice of his positive test results prescribed sixty days to obtain a favorable recommendation from the Employee Assistance Manager. This Claimant had been treated for about two years, when he was given what must be considered a "last chance." The Board notices that the Carrier has not required strict compliance with its own published time limit. The Claimant might have been discharged many months before. Failure to demand strict compliance with its own published time limit is not to be looked at with a critical eye. This Board is being careful not to write any words which might suggest that extension of its own time limit in one case would establish a precedent requiring extension in another. Some flexibility works for the benefit of both the Carrier and a troubled employee.

 plb4244_308 5
 Public Law Board No. 4244

 Award No. 308
 Case No. 318

 The Board is not unsympathetic to the plight of the Claimant. His repeated relapses, however, which he attributes to his financial straits and his domestic problems, make it clear that he is excessively sensitive to the pressures of a troubled life, which drives him to seek escape in inappropriate behavior. The Board sincerely harbors the hope that he will obtain the help that he needs so desperately, to the end that he will gain sobriety and ensure a better life for himself and his family.

 Having said that, the Board finds that it cannot extend more, nor better, opportunities for rehabilitation than have already been afforded him by the Carrier. It has been extremely patient and compassionate, but the Claimant's continued recidivism has, understandably, exhausted the Carrier's forbearance. The Board has no grounds to substitute its judgment for the Carrier's. The claim is denied.

 AWARD
The claim is denied.

a_ 'A.


Robert J. Irvin, Neutral Member

 R. $. Wehrli, Employe Member

 Date

 p1b4244_308

 William L. Yeck, Carrier Member