BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
and )
ELGIN, JOLIET AND EASTERN RAILWAY COMPANY )

Martin H. Malin, Chairman & Neutral Member

D. D. Bartholomay, Organization Member

J. F. Ingham, Carrier Member




STATEMENT OF CLAIM:












FINDINGS:
Public Law Board No. 5905, upon the whole record and all of the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

 In March 1993 Claimant was dismissed from service for violating Rule G, having tested positive for THC. On September 17, 1993-, Carrier agreed to. reinstate Claimant conditioned, among other things, on his contacting Carrier's Employee Assistance Program Administrator, undertaking and

                        2 ,¢ 4" completing recommended treatment and aftercare programs, and

remaining drug and alcohol free while subjectto duty. On
 January 6, 1994, the EAPA approved Claimant to return to
 work. However, on January 5, 1994, a hearing was held to
 investigate charges that Claimant had filed fraudulent
 claims for unemployment benefits. On January 13, 1994,
 Claimant was found guilty of the charge and dismissed from
 service. Claimant's claim was submitted to Public Law Board
 No. 5600 which sustained the claim and ordered Claimant
 reinstated. On September 1, 1995, Claimant was given a
 return-to-duty physical exam which included a drug screen.
 Claimant tested positive for THC.

 On September 11, 1995, Carrier notified Claimant to report for an investigation on September 14, 1995. The notice charged Claimant with violating Rule G and the terms of his conditional reinstatement. The hearing was postponed to and held on September 27, 1995. On October 5, 1995 Carrier advised Claimant that he had been found guilty of the charges and was dismissed from service.

      The organization contends that Claimant was prevented

from completing the EAP program because of his dismissal for -
 allegedly filing fraudulent unemployment benefits claims.
 The organization maintains that, because that dismissal was
 held to have violated the Agreement, Claimant should not be
 held responsible for his positive drug test on September 1, -
 1995. Carrier argues that Claimant was responsible for his
 positive drug test and that the result violated Rule G and
 the conditions of his prior conditional reinstatement.

 The Board has reviewed the record carefully. The organization does not contest the drug test. Rather, it argues that Claimant was prevented from completing the rehabilitation program by his prior dismissal which was overturned by PLB 5600. We do not agree. At the investigation, Claimant explained his failure to complete the rehabilitation program:

      I was in the process of getting, making conditions that was stipulated in the letter of September 17, 1993 when I was terminated again by the Carrier. So I didn't finish meeting my conditions with the agreement because I was terminated again.- What would be the reason of meeting conditions if I'm no longer an employee. It would be irrelevant on my part.


      Of course, the reason for continuing with the

rehabilitation program would be to deal with his substance -
 abuse problem. Claimant chose, on his own accord, not to
 continue with the program. Moreover, if, upon being
 recalled pursuant to PLB 5600's award, Claimant believed
 that he was not ready to return to work because he had not _.
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continued with the rehabilitation program, it was incumbent on him to advise Carrier. Instead, he proceeded to take the return-to-duty physical and tested positive for a controlled substance. We see no reason to disturb his dismissal.

                      AWARD


      Claim denied. -


                artin H. Malin, Chairman


. F. Ingham, D. Bartholomay,
 Carrier Member = orga 'zation Member

      Dated at Chicago, Illinois, February 7, 1397.