PUBLIC LAW BOARD NO. 5860
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northam Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT OF CLAIM:
1. The Carrier violated the Agreement on July 19, 2004, when it
terminated the Claimant, Mr. R. Valenzuela's seniority without an
investigation, when he allegedly violated the Carrier's Policy on the
Use of Alcohol and Drugs, a second tine within a 10-year period,
when he failed a follow app breathalyzer test on July 15, 2004.
2. As a consequence of the violation referred to in part (1), the Carrier
shall Immediately return the Claimant to service, remove any
mention of this incident from his personal record, and make him
whole for any wages lost account of this violation.
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
thereon.
On July 19, 2004, the Carrier wrote Claimant as follows:
°I have been advised ...that you have violated the Carrier's Policy on Use of
Alcohol and Drugs by testing positive for a controlled substance andlor
alcohol twice within the past ten (10) years.
Carrier records disclose that you tested positive for an illegal substance
(marijuana) on December 15, 1999. You tested positive for alcohol on a
random test performed on July 15, 2004.
The return to active service letter that you signed on February 25, 2000
clearly states that a second drug or alcohol violation within ten (10) years
will subject you to dismissal.
For the reason stated above, effective immediately, you are dismissed from
the service
of
the Burlington Northern Santa Fe Railway.
If
you dispute this
Page 2 Award No.
Case No. 269
action taken, a claim may be flied on your behalf for reinataternent, which
must be presented within sixty (10) days from the data of this letter
pursuant to the letter of Understanding dated June 24, 1991, between the
Carrier and Brotherhood of Maintenance of Way Employees."
CialmanPs Representative did file a claim protesting the findings as Claimant
contends that he used Listerine and Benzadent without realizing the alcohol content of
each. He protested the findings Indicating the urine test done after the breathalyzer was
negative.
Carrier's Manager of Medical Support and Services stated residual mouth alcohol
will dissipate within 15 minutes. The same Manager did writs it would be possible to
have an alcohol positive teat from Listerine, but the Claimant would have to drink It, not
just rinse his mouth.
On the day Claimant was tested, he registered .061% and fifteen minutes later, the
second test registered .053%. Clearly, Claimant did not stay alcohol-free as he agreed he
would when he was reinstated on a conditional basis following his first violation of
Carrier's Drug and Alcohol Policy.
Claimant was given one chance in early 2000 to continue his career with the
Carrier. He has failed. Carrier's action In terminating Claimant's employee rights was in
accordance with existing Rules and Agreements. Such action will not be disturbed by
this Board.
Claim denied.
ORD R
This Board, after consideration of the dispute Identified above, hereby orders that
an award favorable to the Claimants) not be made.
Page 3 Award No.
Case No. 269
Roberf L Hicks, Chairman 8 Neutral Member
Rick . Wehrll, Labor Member William L Yeck, Cartier r
Dated: