NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 5735
JOHN C. FLETCHER, CHAIRMAN & NEUTRAL MEMBER
JOSEPH A. MARKASr, CARRIER MEMBER
Public Law Board No. 5735, upon the whole record and all of the evidence, finds and holds that the Employce(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that they Board has jurisdiction over the dispute(s) herein; and, that the parties to the disputes) were given due notice of the hearing thereon and did participate therein.
Claimant is a near ten-year employee, that was working as a Track Foreman at the time of his dismissal. On October 10, 1994, he tasted positive for morphine. Under Carrier's Drug and Alcohol policy, Claimant was given an opportunity to rid his system of prohibited substances, return to service and become a productive employee. After providing Carrier with drug free urine samples Claimant was returned to active service on February 6, 1995. As a condition of his return he was required to undergo periodic drug testing during the next three years. One such test occurred two weeks after Claimant was returned to duty. On February 22, 1995, Claimant wus required to submit for testing, which again indicated positive for morphine. When Claimant became aware of the positive test he requested a retest, which was performed on March 1, 1995. That test, too, indicated positive for morphine.
Claimant was cited to attend an investigation on a charge that he failed to refrain from the use of prohibited substances. That investigation was postponed and rescheduled several times, while Claimant participated in EA P. On May 15, 1995, on the advice that he was in compliance with EAP recommendations, Claimant was returned to duty. Shortly after his return Claimant was granted a personal leave due to the tragic death (murder) of his son. On August 8, 1995, Claimant returned to service.
On July 15, 1997, Claimant was selected for a DOT/FHWA random drug and alcohol screen. The breathalyzer test administered in this screen indicated positive for alcohol. Claimant was removed from service and cited-to attend an investigation. At the investigation Claimant admitted that he was on the property at work while under the influence of alcohol on July 15, 1997. His excuse for showing up for work under the influence was an alleged confrontation with the individuals that murdered his son, which caused his relapse.
In appealing the dismissal to this Board the Organization argues that the tragic circumstances of Claimant's son's death and the subsequent confrontation with the alleged murderers should weigh in mitigation in his favor.
The Board harbors the greatest sympathy for a parent that loses a child in tragic circumstances. But no matter how great the tragedy may be, individuals affected by it are still responsible for their subsequent conduct. And a responsible individual simply is not allowed to report for work under the influence of drugs or alcohol, no matter what the circumstances happen to be. One's gricl over the loss of a child is not a license to endanger the public and/or coworkers by reporting for work under the influence of drugs or alcohol. And, this was not the first time that Claimant was caught at work under the influence of drugs or alcohol - it was the third time. He was given two previous opportunities to keep his system free of prohibited substances. His third failure to do so warrants a conclusion that the discipline of dismissal not be disturbed.