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. John Thompson, Jr., became employed by the Carrier in its Maintenance of Way Department in 1978. On April 10, 2003, he was required to undergo a reasonable cause test for the use of alcohol and/or drugs. An alcohol breath test disclosed a breath alcohol concentration of 0.026%. The Carrier's Maintenance of Way Operating Rules prohibit the use of alcoholic beverages while on duty or on the Carrier's property. The United States Department of Transportation's drug and alcohol regulations and the Carrier's Policy on the Use of Alcohol and Drugs ("Drug/Alcohol Policy") prohibits an employee from reporting for or remaining on duty with a blood or breath alcohol concentration greater than 0.02%.

 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

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 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 apparently completed the necessary requirements, and was reinstated to service on June 15, 2003. He was thereafter subject to periodic testing for a period of time not disclosed in the record. The Carrier's Policy for Employee Performance Accountability ("PEPA") provides that more than one confirmed positive test either for any controlled substance or alcohol during any ten-year period subjects an employee to dismissal.

 On April 12, 2004, the Claimant was required to submit to a follow-up test, and a breath alcohol test yielded a breath alcohol concentration of 0.060%. This occurring just ten months after his return to service on June 15, 2003, he was sent a letter by the Carrier's Southwest Division General Manager on April 13, 2004, reading 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 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 fiirther 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. The Organization concludes that the Carrier acted improperly in terntinating the Claimant

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 under the Drug/Alcohol 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 Carrier responds that the breath alcohol 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 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 the Agreement, the Drug/Alcohol Policy, and the PEPA.

 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 does not contest the validity of the breath alcohol test results, which indicate in both the April 10, 2003, reasonable cause test and the April 12, 2004, follow-up test, the presence of breath alcohol in excess of the Carrier- and Federally-prescribed concentration of 0.02%. The only issues before the Board are whether the Claimant was improperly denied an investigation, whether the Maintenance of Way Operating Rules, the Drug/Alcohol Policy, and the PEPA 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.



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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 affxing 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 April 13, 2004. (See page 2, supra). It reads:





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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 Drug/Alcohol Policy, and the 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:

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The signatures of representatives of both the Carrier and the Organization are affixed, indicating their concurrence.

 The next issue before the Board is whether a Carrier-promulgated Rule, such as those provisions in its Drug/Alcohol Policy and PEPA, 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 seventh 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" the Carrier's Drug/Alcohol Policy and PEPA. Rule 13 is such an Agreement rule. Employers have the right to promulgate rules for the guidance of their employees. The Drug/Alcohol Policy and PEPA are such rules. 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, the PEPA 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 "[N]o 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 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 Board finds that the Claimant was clearly put on notice in the Carrier's Drug/Alcohol Policy that he would be

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 subject to periodic testing after his return to service on June 15, 2003. When he tested positive for the presence of alcohol some ten months later, he violated provisions of the Carrier's PEPA, which subjects employees to dismissal for "More than one confirmed positive test either for any controlled substance or alcohol, obtained under any circumstances during any 10-year period."

 The Claimant's history 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.

 He was tested in compliance with the regulatory requirements of the Federal Motor Carrier Safety Administration, U. S. Department of Transportation. The Carrier's Drug/Alcohol 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.




                  Robert J. Irvin, Neutral Member


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R. B. ehrli, Employe Member William L. Yeck, 'er Member

 -7- Mq Date

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