PUBLIC LAW BOARD NO. 5850
(Brotherhood of Maintenance of Way Empioyes
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT OF CLAIM
:
1. The Carrier violated the Agreement on December 13, 2002; when it
dismissed the Claimant, Mr. L A. Creech, without an investigation,
for allegedly violating the Carrier's Policy on the Use of Alcohol and
Drugs, by testing positive for a controlled substance, a second time
within a ten year period, after a December 11, 2002 test came up
positive for the metabolite for Cocaine; a violation of Maintenance of
Way Operating Rule 1.5.
2. As a consequence of the violation referred to in part (1), the Carrier
shall restore the Claimant to service, remove any mention of this
incident from his personal record, and make him whole for all wages
and benefits lost account of this incident
FINDINGS
Upon the whole record and all the evidence, the Board finds that the parties
herein are carrier and employee within the meaning of the Railway Labor Act, as
amended. Further, the Board is duly constituted by Agreement, has jurisdiction of the
Parties and of the subject matter, and the Parties to this dispute were given due notice of
the hearing therson.
On August 13, 2001, Claimant tested pos'it'ive for cocaine metabolite. He agreed to
enter rehabilitation and successfully completed the requirements of the Carrier's
Assistance Program Counselor. He was approved to return to work on November 27,
2001.
Page 2 Award No.
Case No. 242
One
of the requirements of resuming duty on November 27, 2001, Claimant was
required to sign a letter indicating his understanding that a second positive test would
result In his dismissal and that he would be subject to random testing for the next five
years.
On December 11, 2002, as a result of a random test, he again tested positive for
cocaine metabolite. In the letter Claimant signed to resume service in November of 2001,
was the warning that reads in pertinent part:
"...Possession
of alcohol, controlled substance, illegally obtained drugs,
adulterant substance or drug paraphernalia on BNSF property obtained
under any circumstances ...within 10 years of a confirmed positive test..."
he may very well face dismissal. As a result of the random positive test on December 11,
2002, the Carrier dismissed Claimant pursuant to an existing Agreement
Carrier's actions in dismissing Claimant were proper.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Cleimant(s) not be made.
Robert L Nicks, Chairman 3 Neutral Member
Rick B. Wehrlk Labor Member William L. Yeck, Carne Member
Dated:
I
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