PARTIES
 TO
 DISPUTEt BROTHE1tHOCD OF MAIN'MANCE OF WAY DDFLUYES
 and
 BURLINGTON NORTHERN RAILROAD
 STATS2ilsNT
 OF CLAI : "Claim' in behalf of T?elder J. B. Wade that he '·e reinstated
 to sorvice wiih all`ri-fits ~n<.ct, Fv.id fer all fi5_rle Ir·st
 and that the charges be removed from his service record as
 a result of his dismissal on August 8, 1:)89.%1
 FINDINGS: The Board finds upon evidence of record that the parties are
 Carrier and Ymploye under the Railway Labor Act of 1934 and
 amendments thereto, that pursuant to Agreement of the parties
 the Board has jurisdiction over the parties and the subject
 matter, and that oral hearing has been duly waived by all the
 parties, including Claimant.
 Claimant Weldar J. B. Wade ryas dismissed from the service of
 the Carrier on August 8, 1989 for alleged violation of Rule G. Rule G states:

          «Lmployees must not report for duty under the influence of any alcoholic beverage, intoxicant, narcotic, marijuana or other controlled substance or medication including those prescribed by a doctor that may in any way adversely affect their 'alertness, coordination, reaction, response or safety." (Tr., p. 25).


          The transcript of investigation shows the following testimony of

Roadmaster Stanford: ,

 11Q: Why did you feel you had probable cause?
    A. Based upon anonymous tips of current drug impairment and observation of possible abnormal behavior.


    Q. .'Before a.V testing ryas done did Mr. Moore have a chance to observe ?fr. Wade

    or talk to him? _

                                    c

P46 All 31-lv

                                      AWARD NO. 23 (p. 2) CASE NO. 23


Q. Did he concur with your decision to test ar. Wade? A. Yes, he did. (Tr., p. 6).

 Q: Was the urinalysis then performed? A. Yes, it was.

 Q. Did anyone observe this urinalysis take place?'
 A. I observed Mr. Wade void two samples in the restroom.

 Q. This was at the Bethany Clinic? A. Yes.

 Q. What was the handling given these samples?
 A. Mr. Wade carried both samples to the nurse at the desk. He gave them to the
 nurse and observed them being sealed and signed the seal on both samples.

 Q. Did Mr. Wade observe the same actions taken by'the nurse? A. I observed those actions and also Mr. Wade did.

 Q: Did you take any exceptions to the handling at that point? A. Nov I did not.

 Q. What happened to those two samples?
 A. One sample was tested at Bethany; the other sample was shipped to the American
 Institute for Drug Detection in aosemont, Illinois." (Tr., pp. 7-8).

 The record shows that the local test results, at Bethany Hospital, and the test results from the American Institute for Drug Detection showed positive for cocaine and also showed positive for Valium, a prescription dnig prescribed by Claimant's physician'as a tranquillizer. Claimant had not informed the Carrier of his use of Valium.

 The transcript of investigation shows the following testimony of Roadmaster Moore:

 "Q: Did you have a -chance to observe ilr. Wade at that time? A. Well, yes, sir.

 Q. What were your observations?
    A. Well, at that time, we went to the hospital and I noticed the drinking of water and he took his glasses off and I seen redness of the eyes and other than that the cocaine has no visibility to me and I made my observation through the seminar I attended.

P 4, 93 q 3 Y O
                                    AWARD N0. 23 (p. 3) CASE N0. 23


Q. Did you have the formal seminar on drug and alcohol intoxication?
 A. Yes, sir." (Tr., p. 21).

 The transcript of investigation shows the folloving testimony of Claimant
 J. B. Hades

 "Q. After the test was complete, what did you and Mr. Stanford do then?
 A. He took me, he stopped and bought me lunch...

 Q. Have you had a chance to review exhibits "A" and "B", the results of your ' test?
 A. Yes.

 Q. You do understand that these reports, Carrier Exhibit "A" and "B" represent ' the'lab report showing the results of your tests?
 A. Yes.

    Q. Exhibit "A", which was done at the Bethany Medical Center, shows positive for'several items, one of them being cocaine. Are you aware this report did ' show you positive for cocaine?

A. Yes, I've read the report.

 Q. It-also shows below that it was a chomical called Benzodiazepine. It was con' siatent with person's medication, Valium. Is that a correct statement?
 A. Yes.

 Q: Here you taking Valium from, on a prescription basis?
    A. Yes, I prescribed Valium, taken at night they have no effect on me the next day.


Q: Have you ever told anyone that you were taking this drug?
    A. No, I didn't know I should. I didn't take it at work and it didn't affect me, it didn't affect my work anyhow. 'Some people it might, it doesn't me. It doesn't leave me drowsy or nothing.


Q. Have you had a chance to review Exhibit "B" the backup test from the American ' Institute for Drug Detection? A. Yes, I looked at it. '

 Q: Are'you also aware that this test shows positive for cocaine? A. Yes.

 Q. With the test results being positive on both the local test and the backup
 ' test for cocaine, had you been taking cocaine up to this time? A. No, I hadn't.
 Pk 13q3L/D
                                AWARD NO. 23 (p. 4) CASE N0. 23


Q. Do you have any reasonable explanation as to why both tests would come up
 positive for cocaine? '
 A. Well, the anonymous tip. The only thing I can think of they must have put
 it in something I ate for lunch or, it could a been put, that's why I don't
 agree with anonymous tip because anybody could put any kind of drug4ia some
 body's coffee, their lunch and then turn 'erd in and say he's on something
 and they he would have it in his system, but maybe they wouldn't be under
 the influence of it, but it would show up. That's ehy I don't understand
 anonymous tips. I mean, that could get out of hand.

 Q. Are you stating that on August 8th, you did not have cocaine metabolites
 ' in your"'system?
 A. If tile test said it was in there, I Just stating that I didn't do any cocaine.
 I don't know how it got into my system.

    A. ...the weld does bother my'eyes and I've had an operation on my eyes and they get red easily." (Tr., pp. 24-25, 28).


The Board finds that the Carrier had reasonable cause to test Claimant, in view of Claimant's observed behavior including his red eyes. Anonymous tips, alone and by themselves, would not be sufficient, but when accompanied by behavioral observations by an Officer trained in a special drug program, the anonymous tips, anonymous to the Claimant but not anonymous to the Officer receiving the tips from members of Claimant's gang, may be considered by the Officer in determining whether there may be probable cause for testing.

 The Board has considered Claimant's argument that he was "set up", but notes that there is not a scintilla of evidence in the record in support of such an allegation. Claimant had his lunch after the test was administered. The Board notes the rebuttal testimony of Roaamaster'Stanford that Claimant "told me that on the night of August 7th he 'had done one, he told me he had been turned on to a line of cocaine. That was the first time'he's ever done it and it had been given to him by a member of the gang." (Tr., p. 30).

 The Board has considered. the'entire record properly before it, including the Claimant's final statement with the plea: "The minority who are experiencing problems with alcohol and drugs should be given an-opportunity to receive assistance allowing 1001, employees to benefit. You knoir, if there is, I don't think I've got a problem but even if there was, I think I should be given*a chance to deal with, you know, there ought to be some other measure to take than to dismiss me...". (Tr., p. 32). The Board notes that this is Claimant's second discipline for Rule G violation. The Carrier's polic;.· on reliobilitation ap~slies to a first -rinl ation and not to a second Rule G violation.
    Pht) 1-13ya


ASIARD NO. 23 (p. S) CASE N0. 23

 !he record shows substantial probative evidence in support of the Carrier's determination that Claimant violated Rule G. In view of 'the gravity of the violation, and in view of Claimant's prior record of violation of Rule G, the discipline of dismissal is not excessive.

                      A H A R D


          1. The Carrier is not in violation of the Agreement.


          2. The claim is denied.


                        a


            JOSEPH LAZAR, CHAIRMAN AND NEUTRAL MEMBER


DATED: August 22, 1990.