PUBLIC LAW BOARD NO. 5418

Case No. 43 Award No. 43

PARTIES Brotherhood of Maintenance of Way Employes
to - and -
DISPUTE: Springfield Terminal Railway Company
STATEMENT OF CLAIM:
Appeal of the discipline of dismissal imposed
on Paul Malinowski on November 15, 2000.

FINDINGS: The issue herein came about as a result of the claimant's refusal to submit to a Drug & Alcohol test.
The facts involved in this case show that on October 19, 2000, while working as an Equipment Operator with a tie crew, the claimant and several other employees moved their equipment beyond the limits of the Form D authorization, which had been obtained by the Foreman. Following the incident, the claimant and two other employees were instructed by a supervisor to submit to a Drug and Alcohol test. The claimant was the only employee who refused to take the test and was taken out of service. He was subsequently found guilty of violating Carrier's General Rule GR-C (Insubordination).
At his November 3, 2000 hearing, the claimant gave the following response to a question regarding the instructions that he was given on October 19, 2000:

"M. Cary: So, in essence, what you have done when you were instructed to

go to the hospital with the other people involved in the incident,

you refused to go to take a drug and alcohol test, is that correct?

M. Malinowski: I refused because I wasn't sure of what my rights were. I did not

refuse to take a drug and alcohol test because he was just saying

to take the test, I was refusing to take the test because I had no

representation to tell me whether I was doing something right or

something wrong. I did not want to say flat out, No, I don't want

to take this test. All I had to say... l had to say something, and the

only thing I could say was I'm not taking it at this time without any

legal representation to tell me whether I'm doing the right thing or

doing the wrong thing. I was confused. I was nervous. I didn't

understand what was happening to me."

pwip No. 43
PLB No. 5418 C-43/A-43
Page 2

The evidence conclusively shows, both by the testimony of supervision as well as the claimant, that he refused to obey a proper instruction. It has long been held that employee's must comply with reasonable instructions, as long as they do not pose a health or safety threat. We find neither

was present in this case.

Therefore, under the circumstances that are in the record before us, the Board finds the Carrier did not misuse its discretion when it assessed discipline.

AWARD : The claim is denied.

T. W. McNulty
Carrier Member

Dated: a-/oZ-o?oL

`Fran ' . Dc i
Neu Memb

. A. Winter
Organization Member