PUBLIC LAW BOARD NO. 4402
PARTIES ) BROTHERHOOD
OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE ) BURLINGTON
NORTHERN RAILROAD COMPANY
STATEMENT OF CLAIM
(1) The dismissal of Truck Driver R. K. alleged violation of General
Rule G was unwarranted, without just and sufficient cause, on the ,
basis of unproven charges and in violation of the Agreement
(System File #10 Gr.l10 DI - R. K. Nolan).
(2) The Claimant shall be reinstated to service with seniority and all
other rights unimpaired, his record cleared of the charge leveled
against him and he shall be compensated for all wage loss suffered.
()PINION OF BOARD
As a result of charges dated April
9, 1985,
investigation held on April
18, 1985
and by letter dated April 26,
1985,
Claimant, a truck driver with eight years of service, was
dismissed for violation of Rule G for allegedly being under the influence of marijuana.
On April
8, 1985,
Claimant was instructed by his foreman to drive his vehicle to a
crossing and then drive the truck off the tracks. Rather than drive to the crossing as
instructed, approximately 600 feet from the crossing Claimant drove off the track and
proceeded down a grade into a swamp where the truck was damaged and became stuck. In
accord with the Carrier's request made as a result of the incident, Claimant submitted a
urine sample for drug tests which tests showed positive for TUC (marijuana). Claimant
admitted during the investigation that he uses marijuana.
Initially, we have examined the transcript of the investigation and we do not find
that Claimant was deprived of a fair and impartial investigation.
With respect to the merits, the parties make the same arguments in this case as were
made in Award 6 of this Board concerning the drug tests. For the same reasons articulated
by us in that award, and again, without prejudice to the parties' respective positions, we are
PLB 4402, Award 10
Page 2
of the opinion that substantial evidence exists in this record to support the Carrier's
conclusion that Claimant violated Rule G.
However, in this case we are not of the opinion that dismissal was unwarranted.
This incident was Claimant's sixth disciplinary offense and his second Rule G violation.
Claimant's record shows several suspensions as a result of prior misconduct. Under die
circumstances, we are of the opinion that dismissal was neither arbitrary or capricious.
AWARD
Claim denied.
E. J.'- Kallin
n
Carrier Member
Denver, Colorado
December 7, 1988
Edwin H. Be nn
Neutral Member
P. S. Swanson
Organization Member
sago Office