PUBLIC LAW BOARD NO. 4244 Award No. 329
Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: and
Burlington Northern and Santa Fe Railway
(Former ATSF Railway Company)
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement on December 22, 2003, when it
dismissed the Claimant, Mr. T. R. Cardwell, for allegedly violating Mainte
nance of Way Operating Rule 1.5; BNSF Policy on the Use of Alcohol and
Drugs, a second time within 10-years; and BNSF policy on Employee
Performance Accountability, when he tested positive for a controlled
substance on December 10, 2003.
2. As a consequence of the violation referred to in part (1), the Carrier shall
immediately return the Claimant to service, remove any mention of this
incident from his personal record, and make him whole for any wages lost
account of this incident. [Carrier File No. 14-04-0027. Organization File
No. 170-1312-041.CLM].
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. Timothy R. Cardwell, became employed by the Carrier as a Maintenance of Way Welder on April 23, 2001. On February 5, 2003, he was required to undergo a
random test for the use of alcohol and/or drugs. The test disclosed the presence of Amphetamine
and Methamphetamine in his urine. The Carrier's Maintenance of Way Operating Rules and the
United States Department of Transportation's drug and alcohol regulations prohibit covered
employees from performing service when testing positive for certain controlled substances.
Provisions of the Carrier's Employee Assistance Program permit employees who test
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.
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Public Law Board No. 4244 Award No. 329
Case No. 336
The Claimant satisfactorily completed the necessary requirements, and was authorized to
return to service on April 10, 2003. He was advised that he would be subject to periodic testing
for a period of five years from the date of his return to work. He was also advised that more than
one confirmed positive test either for any controlled substance or alcohol during any ten-year
period would subject him to dismissal. The Claimant's signature on a copy of the communication
outlining the foregoing conditions, returned to the Carrier's Manager of Drug & Alcohol Testing,
acknowledged his having read and understood them.
On December 10, 2003, the Claimant was required to submit to a follow-up test, and the
laboratory's test report indicated the presence, again, of Amphetamine and Methamphetamine in
his urine specimen. This occurring some seven months after his return to service, he was sent a
letter by the Carrier's Division Engineer on December 22, 2003, reading in part as follows:
I have been advised by the Carrier's Medical Department, that you have violated
the Carrier's Policy on Use of Alcohol and Drugs by testing positive a second time
in a ten-year period for a follow up drug test conducted on December 10, 2003,
which warrants removal from service under said policy.
Carrier records disclose that you tested positive for a controlled substance on
February 5, 2003.
· Section 7.9 of the Burlington Northern Santa Fe Policy Use of Alcohol and
Drugs dated September 1, 1999, copy of which was sent to all Santa Fe
Employees, provides dismissal from service for employees who have more
than one confirmed positive test either for any controlled substance or
alcohol, obtained under any circumstances during any 10-year period.
For the reasons given above, effective immediately, your seniority and employment
with the Burlington Northern Santa Fe Railway are ternunated. If you dispute this
action taken, a claim may be filed on your behalf for reinstatement, which must be
presented within sixty (60) days from the date of this letter pursuant to the Letter
of Understanding dated June 24, 1991, between the Carrier and Brotherhood of
Maintenance of Way Employees [sic].
A claim was promptly and timely submitted by the Organization, which argues that the
Letter of Understanding dated June 24, 1991, cited by the Division Engineer, 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
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Public Law Board No. 4244 Award No. 329
Case No. 336
Drugs (Policy). The Organization concludes that the Carrier acted improperly in terminating the
Claimant under the Policy, it being a rule outside the terns of the Collective Bargaining Agreement.
The Organization further argues that the Claimant had taken several medications on
December 9, 2003, due to having symptoms of a cold and influenza. He readily took the random
test on his return to work on December 10. Then, less than 24 hours later, he submitted to
another test for the use of drugs and alcohol, on December 11, due to his application for a
transfer into Train Service. The urine specimen submitted on December 11, yielded a negative
result. There is an implication that the medications may have accounted for the positive test
result.
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 an investigation is required before discipline is administered.
The Carrier responds that the laboratory test results clearly show that the Claimant twice
tested positive for controlled substances within a ten-year period. It further contends that it
properly used the provisions of the two Letters of Understanding, which permit 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 further argues the Claimant was in violation of Maintenance of Way
Operating Rule (MWOR) 1.5, which prohibits employees from having prohibited substances in
their bodily fluids when on duty. The Carrier also contends that it properly imposed the requirements of Appendix C of its Policy for Employee Performance Accountability (PEPA). Included
within the dismissible rule violations listed in this Appendix C is a second positive test for drugs
or alcohol within a ten-year period:
Refusal to submit (at any time) to required testing for drug or alcohol use, adulteration of sample, second violation of Rule 1.5 (former Rule G), second positive test
within 10 years, or failure to comply with instructions of the Medical Director.
The Carrier denied the Organization's claim, and the dispute has been referred to this
Board for its decision, based on the record.
The Organization's allusion to the negative test result on December 11, 2003, suggests
some question about the validity of the positive test on December 10, 2003. (It does not contest
the validity of the laboratory test results for February 5, 2003.) The Board believes there are
plausible reasons why urine specimens taken on two consecutive days may yield differing results.
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Public Law Board No. 4244 Award No. 329
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Neither of the Parties has submitted any data on the length of time it takes these prohibited
substances to be metabolized and completely excreted in the urine. As with any chemical or
medication, these substances have measurable half-lives, which result in diminishing detectable
levels after ingestion. This suggests that these substances may have equaled or exceeded the
prescribed cutoff level on December 10, 2003, but diminished to a point below the cutoff level on
the following day. The Board notices that a split sample of the December 10 specimen was
retested, and the positive test result was confirmed. This evidence is persuasive that the controlled substances were present in excess of the Federally-prescribed cutoff levels. Even if the
medications taken on December 9 account for the presence of these substances, the Claimant has
not documented their chemical content, the dosage levels, or whether they adversely affect his
ability to work safely.
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.
The April 1, 1990 Letter of Understanding reads as follows:
It is agreed that, effective April 1, 1990, the provisions of Rule 13 will not
be applicable to employees who are placed on medical leave of absence for sixty
(60) days as a result of testing positive for a substance prohibited by Carrier's
rules, and who, during the sixty (60) day period, fails to finmish a negative urine
sample. Such employee will be notified in writing by certified mail, return receipt
requested, after the sixty day period has expired of the termination of his seniority
and employment. The written notice shall contain an adequate statement of the
circumstances resulting in the employee's termination of employment. Copy of
this letter will be furnished to the General Chairman together with copy of the
letters written by Carrier's Medical Director to the employee.
It was also understood that the above will not preclude the filing and
progression of claim filed on the employee's behalf for reinstatement which must
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Public Law Board No. 4244 Award No. 329
Case No. 336
be submitted to this office within 60 days from the date he is notified of termination of his employment.
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.
Then, on June 24, 1991, the Parties executed another Letter of Understanding, which was
referred to in the Division Engineer's letter to the Claimant dated November 27, 2002. (See page
2, supra). It reads:
This will confirm our understanding reached on June 20, 1991, in connection with the application of Rule 9.0 of the Santa Fe's "Policy On Use Of Alcohol
and Drugs" which became effective March 1, 1991, and which all Santa Fe
employees were notified by letter dated February 1, 1991, which reads as follows:
[Santa Fe's Rule 9.0 has been supplanted by Section 7.9 of the Policy, but its
provisions are substantially the same].
Effective June 1, 1991, an employee who is subject to dismissal under the
aforequoted [sic] provisions of Rule 9.0 shall be notified in writing by Certified
Mail, Return Receipt Requested, to the employee's last known address, copy to
the General Chairman, of termination of his seniority and employment. The
notice shall contain ad [sic] adequate statement of the circumstances resulting in
the employee's termination of employment.
It was also understood that the above will not preclude the filing and
progression of claim filed on the employee's behalf for reinstatement which must
be submitted to this office within 60 days from the date he is notified of termination of employment.
The Letter of Understanding dated April 1, 1990, will remain in effect.
If the above correctly reflects our understanding of the manner in which
Rule 9.0 cases will be handled, please indicate your concurrence by affixing your
signature on the line provided below.
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Public Law Board No. 4244 Award No. 329
Case No. 336
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
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 Board notices, in passing, that a third Letter of Understanding dated December 29,
2003, addresses changes in numbering and placement of the Maintenance of Way Operating
Rules, the Policy, and the Policy on Employee Performance Accountability (PEPA). It indicates
that certain provisions in the Drug/Alcohol Policy have been incorporated, intact, into the PEPA.
This Letter of Understanding and concludes with the following paragraphs:
Therefore, this letter will confirm the Party's understanding that the intent of the
June 24, 1991 Letter of Understanding will remain intact as long as the Rule exist
[sic], regardless of its location or numbering.
If the above correctly reflects our understanding of the June 24, 1991 Letter of
Understanding, please sign where indicated.
The signatures of representatives of both the Carrier and the Organization are axed, indicating
their concurrence.
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Public Law Board
No. 4244
Award
No. 329
Case
No. 336
The final question which remains is whether the discipline is excessive. The Board finds
that the Claimant was clearly put on notice in the Carrier's letter dated April 10,
2003,
that he
would be subject to periodic testing for five years, and that violation of any of six explicitly listed
conditions would subject him to dismissal. He signed his name under this sentence: "I have read
and understand the above conditions." When he tested positive for the presence of controlled
substances less than a year later, he violated the first listed condition: "More than one confirmed
positive test either for any controlled substance or alcohol obtained under any circumstances
during any 10-year period."
The Claimant 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. Although the Claimant's personal record has only one previous
disciplinary entry, the positive test result on February 5,
2003,
two drug offenses within a few
months, and the Claimant's relatively short period of service, give the Board no reasonable
grounds to sustain the Claim; it will be denied.
AWARD
The claim is denied.
0
w
Robert J. Irvin, Neutral Member
` L\
IL B. Wehrli, Employe Member William L. Yeck, Carrier Member
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Date
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