ORGANIZATION FILE NO. 97040
PUBLIC LAW BOARD NO. 5719
PARTIES TO DISPUTE!
BROTHERHOOD OF LOCOMOTIVE ENGINEERS)
VS ) NMB CASE N0. 52
AWARD NO. 52
UNION PACIFIC RAILROAD COMPANY )
STATEMENT OF CLAIM:
Appealing the UPGRADE Level 5 Discipline to Engineer
W.
A.
Smith and request the expungement of discipline assessed and pay
for all time lost with all seniority and vacation rights restored
unimpaired. .
FINDINGS AND OPINION
The Carrier and the Employees involved in this dispute are
respectively Carrier and Employees within the meaning of the
Railway Labor Act, as amended. This Board has jurisdiction of the
dispute here involved.
The parties to this dispute were given due notice of hearing
thereon. -
The record before us indicates Claimant was subjected to a
random toxicological test on October 17, 1996. The results of such
test were positive for Cocaine Metabolites. When these test
results were received, Carrier notified- claimant to report for a
formal investigation on a charge that he was in violation of Rule
1.5 of the General Code of Operating Rules. Following the
investigation Carrier found claimant guilty of violation of Rule
1.5 and he was dismissed from service.
For this record we will note that claimant had previously been
dismissed for violation of Rule 1.5 on December
S,
1990. At that
time claimant entered the Employee Assistance Program and was
subsequently reinstated to service
on
February 11, 1991 under the
Companion Agreement in effect between the parties.- In May of 1992
claimant again tested positive for the use of illegal drugs and was
dismissed; however, this dismissal was later set aside by Award No.
10 of Public Law Board 4450 in that Carrier had failed to comply
with proper procedure. Therefore, the positive test finding
currently before this Board constitutes the third time claimant
tested positive. In fact the record before us shows that claimant
requested and received a test of his split sample, the results of
which confirmed the findings of the initial test.
Pt-3
No. 5'7 iq
Award No. 52
-2-
The organization has raised several alleged procedural issues;
i.e., Carrier failed to provide a representative from the
laboratory as a witness and that there was adscrepancy in dates,
raising some doubt about which specimen was tested. The
organization argues that as a result of such deficiencies claimant
did not receive the fair and impartial hearing to which entitled
under the governing rule between the parties.
During the investigation Carrier provided as a witness its
Manager Drug and Alcohol Testing, Mr. Varvel, who quite capably
explained all of the procedures which were followed in securing the
specimen and the testing procedures. When the question arose about
the difference in dates, it was Mr.
Varvel
who _telephoned and
conferred with the Laboratory personnel and discovered the date
difference was occasioned by the lab employee(s) failure to change
the date on the date stamp. While it would have been betterhad
this incident with the date stamp not occurred, it does -not
constitute a fatal flaw in that the evidence clearly shows claimant
presented a sample specimen which was properly tested and the
results came up positive for the use of Cocaine--not only on-the
original test, but also on the test of the split sample.
Inasmuch as Carrier presented Mr. Varvel as an expert witness,
and the fact that Mr. Varvel was able to fully explain the testing
procedures, it is our finding that the Organizations request for
a witness from the laboratory cannot be upheld. A witness from the
laboratory could only testify that the procedure outlined by
Carrier witness Varvel was followed with the specimen number-and
Social Security number on the specimen submitted. The Laboratory
personnel were not aware of claimant's name.
Based on the information before us it is our finding that
claimant did receive a fair and impartial investigation and the
procedural objections raised by the organization are overruled.
The Organization has also requested that there be a DNA
testing of the urine sample submitted by claimant to determine that
such sample was actualiy a sample from claimant. It is the opinion
of this Board that there was insufficient reason produced by the
organization to justify a demand for the DNA test. The record is
clear that claimant properly presented a sample to the Collector,
that such sample was properly sealed and placed in a container for
shipment to the laboratory. There is a complete absence of
evidence that some other sample was tested, therefore, we find no
justification for the DNA test requested.
PL
8 PD. 6 1 lq
Award No. 52
-3-
St is the opinion of this Board that the record contains
sufficient information to justify Carrier's finding that claimant
violated Rule 1.5 and since this was not his first violation, he
was no longer a candidate to participate in the Companion Agreement
program. Accordingly, Carrier's decision to dismiss claimant from
service must be upheld.
AWARD
Claim denied.
F. T. Lync eutral Chairman
D. J Gonzal Carrier Member
J./L. McCoy, Or nization member
Award date
CARRIER FILE NO. 9506229
ORGANIZATION FILE NO. 11145A
PUBLIC LAW BOARD NO. 5719
PARTIES TO
DISPUTE:
BROTHERHOOD OF LOCOMOTIVE ENGINEERS)
1
VS ) NMB CASE N0. 54
AWARD NO. 54
UNION PACIFIC RAILROAD COMPANY )
STATEMENT OF CLAIM:
Appealing the Level 2 Discipline assessed Engineer K. J.
Sanduk and request the expungement of discipline and pay for any
and all time lost with all seniority and vacation rights restored
unimpaired. This action is taken as a result of the investigation
on October 27, 1995.
FINDINGS AND OPINION
The Carrier and the Employees involved in this dispute are
respectively Carrier and Employees within the meaning of the
Railway Labor Act, as amended. This Board has jurisdiction of the
dispute here involved.
In its presentation of this dispute the Organization has
registered a strong protest, alleging the formal investigation was
not conducted in accordance with the provisions of Discipline Rule
136 of the parties agreement.
For this record we note that Rule 136 reads in part as
follows:
.1(c)
Hearings. Hearings will be conducted as
promptly as possible and within five days from
date employe is withheld from service or date
of notice of charges to be investigated.
Notice will be in writing and specify the
charges and place, date and time of hearing
and must be served within five days from date
occurrence to be investigated is known to
exist, ***
'1(d) Hearings-Postponement. Hearings may be
postponed by mutual consent. The party
desiring postponement must make timely request
on the other party and request will be granted
for reasonable cause shown. ***"
~t.~3
ND.
~71q Award No. 54
-2-
The record before this Board is clear that the incident being
investigated occurred on September 29, 1995. Notice of hearing was
sent to claimant, via certified mail, setting the time and date of
hearing as 1:00 PM, Wednesday, October 4, 1995. Carrier addressed
a letter dated October 3, 1995 to the claimant postponing the
hearing to October 12, 1995.-
Carrier did not make a timely request on claimant or his
representative for the postponement as required by Rule 136(d).
Claimant's representative addressed a letter dated October 10, 1995
to carrier objecting to this unilateral postponement and such
objection was also made a part of the transcript of hearing.
Inasmuch as the record is clear that Carrier did not comply
with Rule 136 (d) when it postponed the hearing without mutual
consent, the Board must agree with the Organization that the
hearing here involved was not conducted in accordance with the
agreement terms. Under such circumstances the discipline
administered cannot be permitted to remain on claimant's record.
AWARD
Claim sustained. Carrier is instructed to comply with this
award within 30 days of the date hereof.
F. T: Lynch a ~Ita1 Chairman
D. .. Gonzal , Carrier member
L. ~ICCOy, .(frganization Member
Award date
/)Y