PUBLIC LAW BOARD No. 6850
Award No.
---~ 93
Case No. 253
(Brotherhood of Maintenance of Way Employ"
PA 153 TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Former
(ATSF RaOway Company
STATEMENT OF CLAIM:
1. The Carrier violated the Agreement on July 14, 2006 when It dismissed
Claimant, S. George, for allegedly testing positive for drugs/alcohol a
second tuns within 10 yearn.
2. As a consequence of the violation referred to in part (1), the Carrier
shall
immediately
return the Claimant to service with seniority,
vacation and all other rights restored, remove any mention of this
incident from his personal record, and make him whole for ail time lost
beginning July 14, 2006 forward.
FINDINGS
Upon the whole record and all the evidence, the Board finds that the parties
herein arse Carrier and Employee within the meaning of the Railway Labor Act, as
amended. Further, the Boats is duly constituted by Agreement, has Jurisdiction of the
Parties and of the subject matter, and the Parties to this dispute wore given due notice of
the hearing thereon.
On July 14, 2005, the Carrier wrote Claimant as follows:
"i have been advised by the BN$F Medical Department that you have
violated the BNSF Policy on the Use of Alcohol and Drugs, effective
September 1, 2003, by testing positive for alcohol an a ioJiqw-up test
conducted on July 13, 2006. Furthermore, BNSF records disclose that this
is the second time within a ten year period that you have tasted positive
under the BNSF Policy on the Use of Alcohol and Drugs. The first violation
occurred on April 16, 2004.
In accordance with the Carrier's stinted policies and practices, BN8F
shall dismiss
from
service employees who have more than one conflrt»ed
positive test for alcohol or a controlled substance, obtained under any
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;Z93
Case No. 283
circumstances,
during any ten-year period. Therefore,
effective
Immediately* Your seniority and employment wish ft BNSF Railway is
terminated.
Pursuant to Letters of Understanding dated June 24, 7981, and
December 29. 2008, between the Carrier and the Brotherhood of
Maintenance of Way Employees; If you dispute this action, a chin for your
reinstatement
may be
feed an your behalf within BO days from the date of
this leiter.°
Claimant did timely file a claim, but nothing was brought forward or
established
that the test was in any way flawed.
The two Agreements referred to in Carrier's latter to Claimant Permits them to
terminate seniority and employment rights of anyone who fails a second drug test within
10 years of the first failure.
After Cla6narrt's first failed drug mat on April 15, 2004, he regained his seniority
and employment rights by agreeing to certain terms as contained in a letter
he
signed
indicating he read the letter and understood the terms of his return to service. That latter
reads as follows:
"Dear Mr. George:
This letter will confirm that as a result of conference on April 18,
2004, concerning your tasting positive for alcohol during a reasonable
suspicion test conducted April 15, 2004, Phoenix, Arizona, you are Issued a
Level S conditional suspension effective April 18, 2004, for your violation of
Rule 1.5 of the Maintenance of Way Operating Rules, effective January 31,
1898, as supplemented or amended and BNSF Policy On use of Alcohol
and Drugs dated September 1, 2003.
This suspension Is conditional based upon: 1) your first-drna
violation of Ruts 1.5 of BNSF Policy 4n ilea of Alcohol and Drugs, 2) your
placing yourself into the Employee Assistance Program, 3) your full
compliance with the program and with all instructlans issued you by the
Employee Assistance manager.
You must contact the Employee Assistance Manager within 5 days
tar evaluation andlor treatment. Your treatment must commence within 45
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Cans Ho. 283
days from the stag of your suspension. AD applicable rules for return to
work must be complied with as outlined in the BNSF Policy On Use of
Alcohol and Drugs.
Your suspension will be considered served when you ere released
to active service by the Medical and Emlronmerdal Health Deportment
upon the recommendation of the Employee Assistance Manager, provided
h is within 60 days from do date this suspension commences. Failure to
receive a favorable
recommendation by the end of the 80 day period, or
(allure to abide by the instructions or program set faAh 6y the Employee
Assistance Manager andlor the Medical and Environmental Health
Depsrtmsnd. will automatically result In dfsmfsstil It such charges are
prawn in s separate formal broestleation."
Carrier termination of Claimant's employment and seniority rights was an action
sanctioned by the two fetter Agreements referred to In Carrier's termination letter to
Claimant
This discipline will not be modMsd.
AWARD
Claim denied.
This Board, after consideration of the dispute ktaMlfwd above, hereby orders that
an award tavorabte to tire Ctakra,nt(s) not be made.
e..'
't "E
Robert L. Hicks, Chaimra~n & Neutral Member
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Rick . Wehrli, Labor Member Samantha Rogers, Came her
Dated:
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