PUBLIC LAW BOARD NO. 5396
Parties
to the
Dispute
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYES
and
SOUTHERN PACIFIC TRANSPORTATION
COMPANY
(Western Lines)
STATEMENT OF CLAI
1. That the Carrier violated the current
Agreement when it disqualified Track
Laborer J.A. Tirado, Jr based on unproven charges. Said action being
excessive, unduly harsh and in abuse
of discretion.
2. That the Carrier now reinstate Claimant
to the Class 17 Tractor-Bulldozer Operator
Seniority Roster, San Joaquin Division,
with a seniority date of April 1, 1981,
and his record cleared of all charges.
PLB Case No. 12
NMB Case No. 12
FINDINGS
On May 13, 1991, while transporting 39 foot railroad
sections (panels) down a temporary ramp, Claimants end
loader fell off the ramp onto its side. Claimant was not
hurt and the end loader sustained only a broken mirror and
2
~39~-
i~
Company time and in a Company vehicle,
R-11 Freon, which may be used in the
manufacture of illegal drugs or substances, on April 25, 1991, May 3, 1991,
and May 9, 1991, and for your alleged
insubordination when you allegedly refused
to submit to a toxicology test ordered by
R.N. Peterson, Superintendent on Friday,
August 16, 1991, at approximately 3:15
PM., while you were employed by the
Southern Pacific Transportation Company
at West Colton, California.
Claimant was charged with the violation of six rules of
the Safety and General Rules Governing All Employees of the
Southern Pacific Lines: Rules 1101, 1011, 1013, 1016, 1019
and 1007. On October 21, 1991, following three days of
investigation, Claimant was dismissed from Carrier's employment.
At the hearing before this body, the Board was informed
that Claimant had returned to work on May 18, 1992. Thus,
what is at issue here is a period of approximately seven
months during which Claimant was withheld from service.
It appears from the record of this case that Carrier's
interest in Claimant, who was assigned as a Tinner in the
Water Service and Fuel Sub-department, was peaked when a
Special Agent was notified that Claimant had purchased a
large quantity of R-11 Freon from a company in Yuma,
Arizona. Carrier was informed that Freon may be used in the
manufacturing of illegal drugs.
s 53q94,-
l.;L
Claimant acknowledged its purchase and said that he was
reselling it to a third party who was going to use it to
clean computers and computer parts. When he was ordered to
take a drug test, he refused.
Although this Board does question Claimant's decision
to transport the Freon using a Carrier truck, in general, we
cannot conclude that his actions here constitute grounds for
his
termination. The
suspicion that purchased goods may be
used for an illicit purpose is not sufficient to prove that
an illegal act occurred. More is required of Carrier to
sustain its burden. At the same time, given that carrier
was acting solely on the basis of suspicion, it lacked
reasonable or probable cause to order a drug test.
For all of these reasons, the claim must be upheld.
AWARD
Claim sustained. Claimant is to
be compensated for lost wages and
benefits between the date of his
termination in October 1991 and his
return to employment in May 1992.
C.H. Gold, eu al chairman
C. . Foo e, Employe Member Martin, Carrier Member
a - adf- g
Y
Date of Approval