(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad
STATEMENT OF CLAIM:
1. The Carrier violated Rule 13, and Appendix No. 11, when Sampson Antonio
was dismissed from service based on his allegedly failing a breath alcohol
test on Friday, August 29, 1997, and his alleged failure to comply with the
conditions set forth by the Employee Assistance Counselor in a letter of May
13, 1997.
2. As a consequence of the Carrier's violation referred to above, Claimant shall
be reinstated to service with all seniorities, vacation and benefit rights
restored and compensated for all wage loss beginning September 4, 1997,
and continuing.
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.
The Carrier's Drug and Alcohol Policy clearly stipulates that:
"Those employes who have tested positive in the past ten (10) years would
be subject to dismissal whenever they test positive a second time."
The parties have further agreed that: -_
"...an employe who is subject to dismissal under the aforequoted provision ...shall be
notified in writing by Certified Mail, Return Receipt requested, to the employee's last
known address, copy to the General Chairman, of termination of his seniority and
employment ...."
Claimant in March. 1997, tested positive for alcohol, waived his rights to an Investigation,
accepted a suspension while undergoing rehabilitation and was returned to service in May, 1997,
subject to an out patient's continued rehabilitation program and periodic random testing.
In August, 1997, following a random test, he failed a breath alcohol test. Pursuant to the
Carrier's Drug and Alcohol Policy and its understanding as to implementation. Claimant was advised
v _,
ie~,L6 U0
- 5950
Page 2 Award No. &-2
Case No. 62
that
his seniority and employment was terminated.
The Carrier has substantiated its Findings of Claimant's violation of the terms and conditions
he agreed to following his first violation in March. Claimant was fully cognizant of the consequences
if he failed the test a second time in ten years. Carrier's action in terminating Claimant's employment
and seniority was accomplished pursuant to an existing Agreement and it will not be disturbed.
AWAB
Claim denied.
nRDER
This Board, after consideration of the dispute Identified above, hereby orders that an award
favorable to the Claimant(s) not be made.
Robert L. Hicks, Chairman & Neural Member
Rick B. Wehrii, Labor Member Thomas M. Rohling, Carrie ember
Dated: f~
r:
l 6~ 1991