(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Burlington Northern Santa Fe Railroad (Former (ATSF Railway Company)

 STATEMENT OF CLAIM :

    1. The Carrier violated the Agreement on July 19, 2001, when it

        dismissed Mr. W. M. Kilter torn service for allegedly refusing to

        submit to a urinalysis and breath test on July 11, 2001, which

        allegedly resulted in a second violation of the Canter's Policy on the

        Use of Drugs and Alcohol, (section 7.9) within 10 years, also

        violating Maintenance of Way Operating Rule 1.6.

    2. As a consequence of the Carrier's violation referred to above Mr.

Kiker shall be returned to service, the discipline shall be removed
 from his personal record and he shall be compensated for all wages
 lost, If any. In accordance with the Agreement
 FINDINGS
 Upon the whole record and ail the evidence, the Board finds that the parties hereln an carrier and employee within the meaning of tile Railway Labor Act as amended. Further, the Board is duly constituted by Agreement, has juriadictbn of the Parties and of the subject matter, and the Parties to this dispute wen given due notice of the hearing thereon.
 Claimant, on July 9, 2001, was seeking protective coverage for rat contractors from the Dispatcher. The Roadmaster was in the neighborhood and heard Claimant's request for protection or an explanation of the protection he did have. ' To the Roadmastsr, Claimant sounded incoherent and confused.
 PCB 140.585b
 Page 2 Award No. (9Z
 Case No. 182

The Roadmastsr drove to Claimant's worksite and direct dialogue convinced the Roadmaster that something was amiss. He detanrNned that a substance abuse was a strong possibility. The Roadmaster intended to drive Clahnant to tire testing facility, but about 2 minutes from tire facility, Claimant told the Roadmastar to drive him to his truck, he was not going to take the drug toot.


The Roadmaster did advise hen of the consequences of his refusal, whereupon Claimant allegedly told the Roadmsster he was well aware of the policy.

A refusal to take the test is treated as a positive test This was Claimant's second positive bat within ten years. Pursuant to an existing Agreement, Claimant was dismissed following the second positive teat within ten years. Carrier acted in compliance with the existing Agreement


    Claim denied.


                        ORDER

This Board, after consideration of the dispute Identified above, hereby orders that an award favorable to the Clsimenf(s) not be made.


              Robert L Hicks, Chalnnan i`Nsutral Member


z- ji
 Rick B. 1 ehrlf, Labor Member Thonrs M. Rohllnp. Carrier Mom

 Dated: G J ~`i~ 20o 1.