C&NWf File No:.__ 02-86-834 -
Proceedings Before Public Law Board 4430
Parties to Dispute:
The United Transportation Union
The Chicago & North Western Transportation Company
Statement of Claim:
Claim of Yardman S. Bontemps, Eastern Division, for reinstatement to the
services of the Chicago & North Western Transportation Company, with vacation
and seniority rights unimpaired, in addition to the payment of any and all
health and welfare benefits until reinstated, and that he be compensated for
any and all time lost, including time spent attending an investigation held
August
27, 1986,
at Proviso, Illinois, when charged with an alleged
responsibility in connection with his violation of Rule G and Rule G Addition,
while employed as Brakeman on Job
89
on duty August 5, 1986, commencing at-q
9:00 a.m. at Proviso" Freight Yard.
Findings:
This Board upon the whole record and all the evidence, finds that:
The Carrier and Employee involved in this dispute are respectively
Carrier and Employee within the meaning of the Railway Labor Act, as amended.
This Board has jurisdiction over the dispute involved herein.
Claimant was dismissed from service, after investigation, for "violation
of Rule G and Rule G Addition, while employed as Brakeman on Job 89 on duty
August
5, 1986,
commencing at
9:00
a.m. at.Proviso Freight Yard."
The circumstances
surrounding the Claimant's dismissal are as follows:
On August
5, 1986
the Claimant was employed as a Brakeman on Job
89
at
the Carrier's Proviso Yard. During the course of the tour of duty, the train,
on which he was assigned operated through a red signal in the Yard. Following
this incident, the Carrier decided to require the Claimant to sukmit to drug
and alcohol testing under the reasonable cause policy. The alcohol test __
proved negative, but his urine test showed 33 marmgrams per milliliter of
cannabinoids. The results of the blood test were not available, and no one on
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behalf of the Carrier could explain why they had not been made available prior
to the investigation hearing.
During the oourse of the hearing the representative for the Claimant
raised several objections. First, it was maintained that even though the
urine test proved positive for cannabinoids, this coy have been as a -result of
passive inhalation since the Claimant had attended a party the preceding day
where some of the people sere using marijuana. Second, questions were raised
with respect- to the chain of custody for the urine specimen, including the
fact that the Carrier could not produce the chain of custody slip. Third, the
Organization requested and the Carrier denied time to permit spokesuen from
the testing lab to appear to testify with respect to the issue of passive
inhalation. Lastly, the Organization objected to the fact that they were
denied a request for a postponement of the hearing so that an effort could be
undertaken to obtain the results of the blood test.
While each of the objections raised by the Union do present certain
problems relating to due process, only the last one need be addressed here
since it is crucial to a determination by this Hoard. It seams to us that the
Organization was entirely within its rights to request that the results of the
blood test be made available at the investigation hearing. The presiding
offices at the
hearing seemed
to attach little significance to the request
that the test be made available and declined to permit a postponement of the
hearing while an attempt was made either by the Carrier or by the Claimant's
representative to obtain the blood test results. Under these circumstances it
is impossible to consider the discharge on its merits since a key
piece of
evidence was rot available and absolutely no indication was given as to the
reason for its unavailability.
This case represents another situation where there is a possibility that
the Claimant did violate Rule G and therefore should have been subject to
discharge; however, because all of the more significant steps required to -
support the discharge were not undertaken the Board is compelled to reverse
the action taken by the Carrier. We feel-that it is critical - if the
alcohol and drug program is to be successful on this Carrier - that all
operating officials be instructed to exercise extreme precautions to assure _
that all required aspects of such an investigation are undertaken in an
objective manner.
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Award: -
Claim sustained. The Claimant should be reinstated with pay for all time
lost subject to deduction for outside earnings.
X~
.NR_JC
Donald F. Markgraf, Elnp y M r Barry E. Sifnon, Carrier Member
~~i -
//John N. Gentry- `,
Neu Msnber and Chairrmn
Chicago, Illinois
August 15, 1988 - -
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