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PUBLIC IAW BOARD No. 4381: CASE No 15
BBOfiER£OOD OF MAINTENANCE OF MY EMPIOYEGS
V.
BJRLINGIUN NORTHLEERN RAIIRCAAD
_ 577~'IFS~IJI' OF CCAIM
1. The dismissal of
Mate
Operator E. J. Studbexg
far alleged ' . . . violation of Burlington
Northern Railroad Ocapeny role "G"' was arbitrary, on rte basis of unproven charges and
without just and sufficient cause in violation
of the Agreement (system File RBG-6P-135/AMB
86-05-08B).
2. The claimant shall be restored with
seniority ai1CI all other rights »^inpai
Ted,
his record cleared of the charge levelled
against him aril he shall be coapensated for
all wage loss suffered.
The threshold issue... does'the waiver signed by Mr. Edward J.
SuOerg bar the Organization fmn appealing the claim... must be decided
in favor of the onganizatior. The organization has the right and the
duty to police the Agreements to which it is a party. The Organization
must assure that individual settlements do not adversely affect collective riots. It is not sufficient that Mr. Surr1berg discussed signirxj the
waiver with the organization. The Organization, as the collective
representative, must retain the right to pursue the matter if it believes
Mr. Sundbeng's waiver of rights is wrong. The duties associated with
fair representation require the organization to consider and to reconcile
individual and collective interests. There is no evidence in this case
that the organization acted in an arbitrary or capricious or discriminatory manner by deciding to go forward with the appeal.
The Carrier has established probable cause for the request that Mr.
Sundberg submit to the urinalysis. Therefore, the carrier did not engage'
in random testing. The Carrier's officers had sufficient reason to
believe that the two reports of use of marijuana by the Claimant were
reliable.
e
' The test results of Mr. Stugiberg's urinalysis indicate that at the
time he underwent the test, Mr. SurAdberg had in excess of 440 nanagrams .,
of marijuana in his system. The results of the emit test were confirmed
by a thin-layer chromatography test. Given: (1) the level of nanagrans_
Ll3q~
i-~s
of marijuana in Mr. buurmezg's system, (2) the confirmation of the test
results, and (3) the testimony of Mr. 3iadberg that he used marijuana oar
October 18, 1985 (Friday night prior to the Monday morning tesst)... there
is substantial evidence from which to
conclude that Mr.
S~adbexg violated
Rule G (in effect in 1985). Mr. Sud'berg had substantial marijuana in
his system while he was on duty or subject to duty.
The investigation was rot defective, as claimed by the Organization,
because the carrier did not produce the two informants as witnesses.
The
basis for disciplinary action taken against Mr. sundbm was the test
results, not the informant's information. No important due process
benefits would have accrued to Mr. Sundberg by having an opportunity to
cross-examine the informants. Furthermore, the program to bring forth
information, about the use of controlled substances and alcohol by
employees on duty or subject to duty could be severely handicapped by
subjecting the informants to public identification.
The carrier acted in a timely manner to initiate an investigation.
The fifteen (15) days period provided for in Rule 40 began when the
Carrier received the results of the urinalysis. Although the information
provided by the informants established probable cause for the testing,
the Carrier did not have sub
stantial evidence of a Rule G violation until
=-.
it received the test results. .-
Claim denied
Ronald L. Miller
Chairman and Neutral Member
Maxine M. Timbermen - Karl P. ItuTts¢n
Carrier Member t Organization Member
DISSENT ( SEE ATTACHED)
Date
._ ,.
y381-~5
EMPLOYEE MEMBER'S DISSENT
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Y
- While concurring with the majority decision that the organization
had the right to pursue this 'claim as part of its right and duty fo police the
Agreement, the Organization respectfully but firmly dissents from the
majority's conclusion that the Carrier was not required to produce the alleged
informant's as witnesses at the hearing. If the Carrier is not required to
produce the informant as a .witness, the Carrier then acquires the ability to
allege the receipt of report by an anonymous informant, whether or not such
report did occur, as a basis for any urinalysis test. If the Company is not
required to produce the informant as a witness, the Company de facto acquires
the ability to engage in random testing.
The Organization respectfully maintains the Board is in error with
respect to the "fifteen (15) days period provided for in Rule 40 (A)".
Because Mr. Sundberg was withheld from service, the applicable rule is Rule 40
B which provides that the investigation shall be held "within ten days after
date withheld from service" for any reason. The organization respectfully
maintains that the "fifteen (15) days period provided for in Rule 40" is
inapplicable to this particular case and the Board's conclusions with regard
to the time limits involved are therefore erroneous.
Karl Knutsen
. -Employee Member
t