1. The Carrier violated the Agreement on February 16, 2005 when k dismissed Claimant, V. Rub:, for allegedly testing positive for drugWalcohol a second time within 10 years.

2. AB a consequence of the violation referred to in part (1), the Carrier shall Immediately raWm the Clahntlmt to service with asPlor#y vacation and all other rights restored, remove any mention of this incident from his personal record, and make him whole for any wages lost beginning February 16, 2005 forward.

Upon tire whole record and all the evidence, the Board finds that the parties herein an Carrier and Employee within the meaning of the Rallaiay 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 February 18, 2005, the Carrier wrote Claimant the following letter terminating his employment:

"Dear Mr. Rutz:

1 have been advised by the Carrier's Medical Department, that you have violated the Carrier's Policy on the Use of Alcohol and Drugs by tasting positive for alcohol, during a follow up drug and alcohol test on Wednesday, February 16, 2005. Furthermore, Carrier records disclose that this is the second in a tan year period that you tested pas" under the Carrier's policy. The first violation occurred on April 9, 2001, when you

tested positive for Cocaine. `

in accordance with Carrier's stated policies and practices, Carrier shall dismiss from service empbyess who have more than one confirmed positive test for alcohol or a controlled substance, obtained under any circumstances, during any 10-year period. Therefore, efiecthre knrnediatsty the Carrier is terminating your seniority and employment with the Burlington Northam Santa Fe Roomy.

Pursuant to the Letters of Understanding dated June 24, 1991, and December 29, 2003, between the Carrier and the Brotherhood of OAainbonance of Way Employees; ff you dispute this action, a claim for your reinstatement may be filed on your behalf within sixty (60) days from the date of this letter.

Please acknowledge receipt by signing and datlng the second copy of this letter and returning it in the enclosed self-addressed erwelope,

Arrange to return all Company property and any Amtrak transportation passes In your possession."

As outlined in the aforequoted termination letter, Claimant had the right to and did file a timely claim. The February 16, 2005, drug and alcohol test was done randomly pursuant to the understanding the Carrier reached with the Claimant following his first failed test pursuant to the following letter.

"You have satisfactorily completed the necessary requirements following your posltavs tast. Please be advised that you are now subject to periodic testing for a period of fire (5) years from the date you return tD work. When a follow-up test Is required, you will be notified by the proper authority. Before you may return to active service, it is. your respotalbift to contact your supervisor and comply with any other conditions that haw been set forth as a result of your poeltim tsst.

Violation of any ors of more of the following conditions will sqtfisct you to dismisses :

· More than one confirmed positive test either for any controlled substance or alcohol, obtained under any circumstances during any 1o-year period.

· A single confirmed positive test either for any controlled substance or alcohol obtained under any circumstances within throe years of any `serious offense' as defined by the Burlington Northern Santa Fe 'Policy for Employee Performance Accountability.'

Award No. P80