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, Mr. Charles D. Rodriguez, became employed by the Carrier in its Maintenance of Way Department in 1974. On June 22, 1995, he was required to undergo a Federally prescribed random test for the use of alcohol and/or drugs. The test disclosed a breath alcohol concentration of 0.144%. The Federal Regulations and the Carrier's Policy on the Use of Alcohol and Drugs ("Policy") prohibits an employee from reporting for or remaining on duty with a blood or breath alcohol concentration greater than 0.0=°ia.

 Provisions of the Carrier's Employee Assistance Program permit an employee who tests positive for the first time to be placed on a leave of absence for the purpose of evaluation, treatment, and education. If they are determined to be free of a mental or physical disorder, and can pass a return-to-work drug/alcohol test, they will be permitted to resume work, subject to follow-up testing from time to time.

 The Claimant appears to have satisfactorily completed the necessary requirements, and was authorized to return to service. The record does not show the date of his return.

 pib4244_313
 Public Law Board No. 4244 Award No. 313
 Case No. 323

 On March 27, 2003, the Claimant was required to submit to another random test, and this test disclosed his breath alcohol concentration to be 0.099%. This occurring approximately eight years after his previous positive breath alcohol test, he was sent a letter by the Carrier's General Manager on April 2, 2003, reading in part as follows:





A claim was promptly and timely submitted by the Organization, which argues that the Letter of Understanding dated June 24, 1991, cited by the General Manager, was only intended to amend an earlier Letter of Understanding dated April 1, 1990, because the Carrier had reduced the period from 90 days to 45 days within which an employee must provide a negative test result, following the first-time positive result. The Organization further argues that the Letter of Understanding dated June 24, 1991 was not intended to be used as an instrument to dismiss employees without an investigation, nor to endorse the Carrier's Policy on the Use of Alcohol and Drugs ("Policy'). The Organization concludes that the Carrier acted improperly in terminating the Claimant under the Policy, it being a rule outside the terms of the Collective Bargaining Agreement.

 The Organization also contends that the Carrier violated Agreement Rule 13 when it denied the Claimant his right to an investigation. It cites several Awards of the National Railroad Adjustment Board holding that Agreement rules prevail over a carrier's operating rules, and an investigation is required before discipline is administered.

 The Organization further argues that the breath alcohol test may have been affected by the Claimant having rinsed his mouth with an alcohol-based mouthwash within 15 minutes before

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 Public Law Board No. 4244 Award No. 313
 Case No. 323

 taking the test. The Organization further states the Claimant had ingested three beers and had eaten a meal between 4:30 p.m. and 6:30 p.m. the night before he was tested. The record indicates that he was tested at 6:34 a.m.

 The Carrier responds that the laboratory test results clearly show that the Claimant twice tested positive for alcohol within a ten-year period. It further contends that it properly used the provisions of the two Letters of Understanding, which permitted it to dismiss an employee without holding an investigation, although the Organization has an opportunity to present a claim on the employee's behalf. The discipline was within the scope of both the Agreement and the Policy. The Carrier rejected and denied all of the other objections, arguments, and claims raised in the Organization's appeal.

 The Carrier denied the Organization's claim, and the dispute has been referred to this Board for its decision, based on the record.

 The Board has given serious consideration to the Organization's suggestion that ingested alcohol the night before, or the use of a mouthwash containing alcohol, may have yielded the excessive breath alcohol reading. Since the Claimant was not afforded an investigation, in which he could have presented an arguable defense and called witnesses, the Neutral Member has engaged in independent research to determine whether there is merit in this suggested defense.

 A law firm which specializes in representing over-the-road truck drivers advises its clients that mouthwashes. cold medicines, allergy medications, and some prescription drugs, all contain alcohol, and cautions against using these compounds before or while driving. It also cautions drivers about what it calls its number-one problem - residual alcohol. Residual or "left over" alcohol in a person's system can result in a test reading in excess of legal standards the "day after." Depending on several factors, such as weight, metabolic anomalies, gender, genetic characteristics, ethnic origin, alcohol tolerance, etc., it takes the body a certain amount of time to process and get rid of alcohol. Even though the physical effects of alcohol, i.e., "drunkenness," may not be present nor observable, the blood may contain a measurably proscribed amount, particularly in view of the low threshold prescribed by the Federal regulation, which has been adopted by the Carrier in its own rules.

 A study was conducted by the Department of Psychiatry, University of Alabama School of Medicine (UAB), in Birmingham, to determine whether breath alcohol values attained following mouthwash use pose a realistic threat to the accuracy of blood alcohol determinations by breath analysis. Ten normal subjects were checked for breath alcohol measurements 2, 4, 6, 10, and 15 minutes after rinsing their mouths with three brands of mouthwash, all containing varying percentages of alcohol content. The study concluded that the decay of breath alcohol values following mouthwash use is sufficiently rapid that mouthwash use would not pose a realistic threat to the accuracy of blood alcohol determinations by breath analysis under normal circum-

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 Public Law Board No. 4244 Award No. 313
 Case No. 323

 stances. The use of mouthwash immediately prior to breath testing in a mistaken attempt to hide the smell of alcohol or other substances, however, may significantly increase the measured breath alcohol value. The Neutral Member also consulted an experienced law enforcement officer, who stated that it is customary to wait at least 15 minutes to test the breath of a driver suspected to be intoxicated, to allow the dissipation of anything taken orally, which might affect the test result. Literature on the subject confirmed this officer's statement. That, too, is the reason the Federal regulation, 49 CFR §40.251(a)(2), requires a period of at least 15 minutes between the screening test and the confirmation test, i.e., to prevent an accumulation of mouth alcohol from leading to an artificially high reading.

 The Board is accepting the Organization's defense at face value, and concludes that it is uncertain whether the mouthwash had any impact on the test value. The UAB study found that the maximum breath alcohol values after 10 minutes were well below the usual driving-whileintoxicated range, 0.08%, for all three brands. Here, the screening test result was 0.100% at 6:34 a.m., and the confirmation test result was 0.099% at 6:54 a.m. Furthermore, the possibility that there may have been residual alcohol in the Claimant's system cannot be discounted. The possibility also exists that the Claimant may have misrepresented to the Organization the amount of alcohol intake, or its time of ingestion. In any event, the breath alcohol reading, well beyond the 0.02% cut off level, cannot be disregarded. In Award No. 27, Public Law Board No. 6102, involving the same Carrier, Organization, and Neutral Member, that Board commented on the reliability of breath alcohol test values:

plb4244 313 4
 Public Law Board No. 4244 Award No. 313
 Case No. 323

 The only remaining issues before the Board are whether the Claimant was improperly denied an investigation, whether the Maintenance of Way Operating Rules and the Policy are superseded by the Collective Bargaining Agreement, and whether the discipline is excessive.

 Rule 13, the Discipline Rule, in the Parties' Agreement, reflects a universally fundamental right of represented employees in the railroad industry: "[N]o employee who has been in service more than sixty (60) calendar days will be disciplined without first being given an investigation." The Parties, however, over a period of years, have entered into letters of understanding which provide exceptions to the pre-discipline investigation requirement. For example, in 1979, they reached an understanding that an employee who accumulates 60 or more demerits might be terminated without holding an investigation, provided the Carrier notifies the employee and the Organization of each instance in which demerits were assessed. This letter states that the employee's only recourse is the processing of a claim.





Clearly, this Letter of Understanding permits the Carrier to terminate an employee who fails to provide a negative urine specimen during the period of his medical leave of absence, subject only to the outcome of a claim filed on his behalf. The Organization's General Chairman signified his concurrence by affixing his signature to this letter. When it was agreed that "the provisions of Rule 13 will not be applicable," the Parties thereby agreed to waive all the terms of that Rule, including the provision that employees may not be disciplined without first being given an investigation.

 plb4244_313
 Public Law Board No. 4244 Award No. 313
 Case No. 323

 Then, on June 24, 1991, the Parties executed another Letter of Understanding, which was referred to in the General Manager's letter to the Claimant dated April 3, 2003. (See page 2, supra). It reads:











The Organization's General Chairman signified his concurrence by affixing his signature to this letter.

 The Board has compared these two Letters of Understanding and considered the Parties' respective arguments. The only essential differences in the two Letters are (1) the circumstances which could result in an employee's summary termination, and (2) the reference to Agreement Rule 13 in the first Letter and its omission in the second Letter.

 Although the second Letter, unlike the first, does not contain the phrase, "[T]he provisions of Rule 13 will not be applicable," the Board has to consider whether it was intended, that Rule 13 should be applicable to those employees who are the subject of the second Letter. The

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 Public Law Board No. 4244 Award No. 313
 Case No. 323

 Carrier argues that the reference to the first Letter in the second Letter - "The Letter of Understanding dated April 1, 1990, will remain in effect" - determines that no investigation is required. The Neutral Member does not find the issue disposed of so easily.

 If, however, the Parties intended in the second Letter to retain the provisions of Rule 13, the Board is caused to question why the second Letter was written at all. If Rule 13 were intended to be applicable under the circumstances described in the Letter of Understanding dated June 24, 1991, the provisions for notice, an adequate statement of the circumstances, and the manner of filing and progressing a claim, with its attendant time limits, would not be necessary. Furthermore, there is no plausible reason why an investigation would be required before termination in the one instance, and not required in the other. One would expect to find consistency among the Agreement's various parts. The Board holds that an investigation is not required under the circumstances provided for in the Letter of Understanding dated June 24, 1991.

 The next issue before the Board is whether a Carrier-promulgated Rule, such as those provisions in its Policy, are superseded by the Rules in the Parties' Collective Bargaining Agreement. The Organization quoted Third Division Award 15590, which reads, "We have ruled on many occasions that agreement rules prevail over operating rules when there is a conflict." In that case, an agreement rule provided that an employee had no right to claim work on the sixth or se, enth day of his work week. The carrier's rule required employees subject to call to be in place where they could be contacted. When the carrier attempted to call that claimant on the sixth or seventh day of his work week, and he was unavailable, he was charged with a rule violation. The Third Division held that he was not required to be available on those days, notwithstanding the carrier's operating rule, because he had no right to claim work on those days, in accordance with the agreement's rule.

 In the instant case, the Board has considered whether any Agreement rule "prevails over" Section 7.9 of the Carrier's Policy. Rule 13 is such an Agreement rule. Employers have the right to promulgate rules for the guidance of their employees. The Policy is such a rule. When an employer enters into a Collective Bargaining Agreement with its employees' designated representative, however, that Agreement may modify or even supercede the employer's rules if there is a conflict. With respect to these Parties, Agreement Rule 13 provides such a modification. As to a specific application, Section 7.9 of the Policy provides that an employee is "subject to dismissal" for certain specified offenses. But the Carrier's right to dismiss is superceded by Agreement Rule 13, to the extent that "[Njo employee who has been in service more than sixty (60) calendar days will be disciplined without first being given an investigation." As it happens, however, as the Board observed above, the Parties agreed, in 1991, to forego the requirement that an investigation be held before discipline is imposed. Therefore, in a case of this kind, the Carrier is not precluded from summarily dismissing an employee, but the Organization retains the right to file and progress a claim disputing the Carrier's action. That is exactly what has been done here. The

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 -.:

 Public Law Board No. 4244 Award No. 313
 Case No. 323

 Board finds no Agreement rule which prevents the Carrier from dismissing an employee for violation of the conditions found in Section 7.9.

 The final question which remains is whether the discipline is excessive. The Claimant's record of disciplinary actions indicate that he does not possess a record sufficiently clear of rule infractions which might warrant any degree of leniency. He had five previous entries. His positive test result in September of 1995, of course, does not appear on the record because he was granted a medical leave of absence for treatment, education, and evaluation.

 He was tested in compliance with the regulatory requirements of the Federal Motor Carrier Safety Administration, U. S. Department of Transportation. The Carrier's Policy is consistent with those and other Federal regulations pertaining to drug and alcohol use in transportation industries. The Board has no reasonable grounds to sustain the Claim; it will be denied..





R B. Wehrli, Employe Member William L. Yeck, Carrier Member

 -.-(0 '3-~1
 Date

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