NATIONAL MEDIATION BOARD

PUBLIC LAW BOARD N0. 4979


BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

and

NATIONAL RAILROAD PASSENGER CORPORATION


AWARD N0. 9

Case No. 9

Carrier File No. BMWE-D-129












F I N D I N_ G S On May 22, 1989, the Claimant was on duty, at which time a Supervisor and a Roadmaster detected the odor of alcohol on his breath. A breath test was performed, producing a positive result for the presence of alcohol. As a result,
                                  Award No. 9

                                  Page 2


the Claimant signed a Rule "G" Waiver, admitting to his violation of Rule "G" and agreeing that he "will be dismissed from service" for failure to comply with a variety of stipulations, including the following:

    4. For cases involving the use-of drugs or alcohol, submit to and pass a test by urine or breath sample respectfully [respectively?j, each calendar quarter for a period of two years.


The Claimant was subject to a drug and alcohol screening test on February 12, 1990, and the results were negative. He was subject to a further test on April 19, 1990, at which time there were positive results for the presence of phenobarbital and butabarbital. As a result, he was subject to an investigative hearing on the following charges:

      CHARGE ONE: Violation of Rule G of the National Railroad Passenger Corporation Rules of Conduct which reads:


        Employees subject to duty, reporting for duty, or while on duty, are prohibited from using or being under the influence of. . . narcotics or other mood changing substances . . . .


      CHARGE TWO: Violation of Rule L of the National Railroad Passenger Corporation Rules of Conduct which reads in part:


        Employees must obey instructions;- directions and orders from Amtrak supervisory personnel and, officers.


      CHARGE THREE: Violation of Rule 0 of the National Railroad Passenger Corporation Rules of Conduct which reads in part:

                                  PLB No. 4979 Award No. 9 Page 3


        Employees must understand and obey

    company . . . procedures and special instructions


During the hearing, the Claimant denied any knowledge or use of barbituates. He had indicated, in the consent form signed prior to the test, that he had used prescription drugs Davocet and Zantac and "a liquid substance for heartburn" within the past 60 days. Testimony by the Carrier Nurse was to the effect that none of these would have contained barbituates.
 Following the hearing, the Claimant was dismissed from service-on all three charges, although no evidence was put forth at the hearing concerning the second and third charges.
 It is the Carrier's position that the-Rule,"G" Waiver is self-effectuating; that is, a failure to comply with the Waiver's terms is sufficient to war-rant the dismissal, based on the employee's commitment under the Waiver. Previous Awards have supported this view. Here, however, the Board finds circumstances which-raise-questions of genuine substance.
 Charge No. 1 does not refer to violation of the Rule "G" Waiver itself, but rather accuses the Claimant of violation of Rule G itself, namely:
                                  PLB No. 4979 Award No. 9 Page 4


      Employees subject to duty, reporting for duty, or while on duty, are prohibited from using or being under the influence of . . . narcotics or other mood changing substances . . . .


Nowhere in the hearing record is there any indication of use of butabarbital or phenobarbital while "subject to duty" or "reporting for duty", nor does such past use show that the Claimant was "under the influence of narcotics". These are "drugs" employed in various medications. The Claimant's denial of knowledge or use of barbituates may not be totally disregarded. Some recognition is due to the fact that the Claimant was under three separate charges, while no evidence was put forth as to two of the three charges, much less proof as to their validity. For whatever reason, the Carrier chose to conduct a hearing based on a charge of Rule "G" violation, without reference to the Rule "G" Waiver. Without providing additional information, the Carrier presumed that a positive showing of barbituate use (when? in what form?) rose to a Rule "G" violation. The Board does not find this convincing. This is particularly so in view of the initial offense of alcohol use, rather than drug use. The claim must therefore be sustained.
                    PLB No. 4979

                    · Award No. 9

                    Page S


                      A W A R D


      Claim sustained. The Carrier is directed to put this


Award into effect within thirty (30) days of the date of this

 Award.

      HERBERT L. MARX, JR., Chairman and Neutral Member


              B. A. WINTER, Employee Member


                P. A. ENGLE, CarrieY' Member


                                T bi,55~NT


NEW YORK, NY

 DATED: » >