BEFORE
PUBLIC LAW BOA" NO. 5839
AUG 1 9 1996
B, list. W_.
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
UNION PACIFIC RAILROAD COMPANY
(Former Oklahoma-.Kansas-Texas Railroad)
Case No. 8
STATgMENT OF CLAIM:
1. The dismissal of R. 7. Tollett, SSN 448-62"8261 fox
allegedly being insubordinate when he failed to comply with instructions
to remain drug free as evidenced by a positive drug test on June-29,1993,
was unwarranted, without just and sufficient cause, on the basis of
unproven charges and in violation of the Agreement.
2. As a consequence of the ~,iolation referred to in Part (1 j
above, the Claimant shall be reinstated to the Carrier's service with
seniority and benefits unimpaired, his record shall be cleared of the
charges leveled against him and he shall be compensated for all wage loss
suffered.
1FTNDINGS:
On March 2, 1992, the Claimant tested positive for amphetamines during a yearly
drug screen. Claimant was disqualified from service. He Nvas advised that if he
successfully completed the Carrier's Employee Assistance Program (EAF), tested
negative for drugs during a "requalifying test", submitted to follow-up drug testing for
five years, remained drug free indefinitely, and avoided any violation of Carrier rules
involving drugs/alcohol he would then qualify for return to the Carrier's service.
Claimant had complied with all of the above, and, consequently, was reinstated to
service effective March 3, 1993.
5 839-8
On June 29, 1993, the Claimant underwent a three-year follow-up drug screen anal
once again tested positive for drugs. The Claimant was notified to appear for a formal
investigation on the charge of allegedly being insubordinate when be failed to comply
with the Carrier's instructions to "remain drug free indefinitely". Claimant was also
charged with being absent without authority fxom work on July 6, 7, $, 12, and 13, 1993.
Claimant was found guilty as charged and dismissed from service by letter dated
September 20, 1993.
The parties being unable to resolve the issue, this matter comes before this Board.
This Board has reviewed the evidence and testimony in this case and ive fund that
there is sufficient evidence in the record to support the finding that the Claimant was
guilty of violating the terms of his reinstatement by testing positive for drugs during a
follow-up test in June of 1993. -
The record reveals that the Claimant was given a drug screen on March 2, 1992, as
part of the Carrier's regular physical examination. At that dine, he tested positive for
amphetamines. He was then advised that he
must
complete
the Employee
Assistance
Program and test negative for drugs as part of a requalifying test, as well as submit to
follow-up drug tests for five years and remain drug-free indefinitely.
The Claimant was reinstated to service on March 3, 1993. At that time, he was
told that he would have to submit to random follow-up drug testing for a period of three
years. Claimant was administered a drug screen on June 29, 1993, and tested positive.
5839-8
The Claimant was also absent from work without authority on July 6, 7, 8, 12, and 13.
The Claimant was noted to report for a formal hearing regarding his being
absent N,rithout authority and later was notified that the investigation would also include
the charges that he was insubordinate for failing to comply with the instructions relating
to his remaining drug free. The hearing was finally held on September 8, 1993.
This Board has reviewed the procedural arguments raised by the Organization and
we find them to be without merit.
This Board has reviewed the record of proceedings from that hearing and it is clear
that the Carrier met its burden of proof with respect to both charges. The Claimant has
thereby subjected himselfto diseplinary action.
Once this Board has determined that there is sufficient evidence in the record to --
support the guilty 5ndiug, we next turn our attention to the type of discipline imposed.
This Board will not set aside a Carrier's imposition of discipline unless we fmd its actions
to have been unreasonable, arbitrary, or capricious.
In this case, the Claimant was clearly told in 1992 that he had to remain drug-tee.
He was also informed that he would be subject to random testing. At one of those
random tests, be came up positive. In addition, the Claimant was guilty of being absent
without permission on several days.
Given the previous background of this Claimant and the seriousness of this
offense, this Board cannot find that the Carrier acted unreasonably, arbitrarily, or
5839
capriciously when it terminated the Claimant's employment. Therefore, the claim must
be dezaied.
Claim denied.
PER R.~
Neutral er
I/d
Carrier Member Organization Member
DATED: c.~
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DATED:
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