BEFORE PUBLIC LAW BOARD NO. 6043
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
CANADIAN NATIONAL RAILWAY
Case No. 35
STATEMENT OF CLAIM:
Claim of Welder Helper C.E. Byrum, Memphis TN, that the Carrier "... rescind and
remove the dismissal discipline from the Claimant's record, and that he be reinstated
to service and made whole in accordance with Rule 33(1),) for alleged violation of CN
U.S. Operating Rules General Rule B; General Rule G; General Rule I, LIFE U.S.
Safety Rule Book for Engineering Department Rules(s), on page 65, Substance and
Alcohol Free Environment Policy and Guidelines, A, Preface, B, Policy and D,
Subparagraph 5, for alleged refusal to take a random drug test, failure to follow
supervisor's instructions, and abandonment and failure to protect his assignment as
Welder Helper at Johnston Yard on January 26, 2006. Organization file number: SA
040706.0 CN-IC C.E. Byrum (Investigation). Carrier file number: IC 134 106 11.
FINDINGS:
By letter dated January 31, 2006, the Claimant was directed to attend a formal
hearing and investigation to determine whether the Claimant had refused to take a random
drug test, violated Carrier rules or supervisory instructions, and abandoned and failed to
protect his assignment as a welder helper. After a postponement, the investigation was
conducted on February 17, 2006. By letter dated March 7, 2006, the Claimant was
informed that as a result of the hearing, he had been found guilty of violating Carrier rules
and policies, and that he was being dismissed from the Carrier's service. The
Organization thereafter filed a claim on the Claimant's behalf, challenging the Carrier's
decision to discharge him. The Carrier denied the claim.
The Carrier initially contends that, contrary to the Organization's argument,
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significant discipline previously had been imposed upon the Claimant. The Carrier points
out that the Claimant previously was discharged from the Carrier's service for a violation
of Rule H.
The Carrier argues that the transcript demonstrates that the discipline was
warranted and appropriate. Moreover, this case was properly handled in accordance with
the guidelines of the parties' Agreement. The Carrier asserts that the Claimant admittedly
left the property without authority, and with full knowledge that he was scheduled for a
random drug and alcohol test. The Carrier maintains that this is considered a refusal to
test, which is a violation of federal regulations, as well as Carrier rules and policies.
The Carrier points out that the Organization has not cited any rule that the Carrier
violated in connection with the investigation and discipline at issue, and the Carrier
argues that the Agreement has not been violated.
The Carrier ultimately contends that the instant claim should be denied in its
entirety.
The Organization initially contends that the Claimant's dismissal was unwarranted,
unjust, excessive, and in violation of the Agreement. The Organization asserts that the
record does not support the Carrier's decision to impose the most severe penalty of
discharge. The Organization argues that the Claimant was honest and forthcoming at the
investigation. The Organization maintains that this incident requires a full, fair, and
thorough investigation of all elements that may have contributed to the Claimant's not
taking the drug test, and the Organization insists that it is ready to cooperate in
developing reasonable efforts to safeguard against another such event. The Organization
insists that the decision to dismiss the Claimant was neither fair nor reasonable.
The Organization emphasizes that it is well-established in the railroad industry that
the purpose of administering discipline is not to inflict punishment, but rather to
rehabilitate, correct, and guide employees in the proper performance of their duties. The
Organization points out that Board Awards consistently have held that the severity of the
punishment must be reasonably related to the gravity of the offense.
The Organization contends that in the instant case, the disciplinary penalty is
improper, arbitrary, and harsh in light of the nature of the incident and its non-progressive
nature of the discipline. The Organization points out that the Claimant was dismissed
well before the Carrier applied all of the progressive steps. Clearly, the Claimant was not
given the chance to rehabilitate. The Organization emphasizes that the Board repeatedly
has recognized that the principle of progressive discipline is essential in the railroad
industry.
The Organization asserts that a review of the record demonstrates that the
discipline imposed cannot be validly upheld. The Organization therefore contends that
the instant claim should be sustained in its entirety.
The parties being unable to resolve their dispute, this matter came before this
Board.
This Board has reviewed the evidence and testimony in this case, and we find that
there is sufficient evidence in the record to support the finding that the Claimant was
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guilty of violating both Carrier and federal rules when he refused to take a random drug
test and failed to follow the supervisor's instructions that he take that test. The Claimant
was also properly found guilty of abandonment and failure to protect his job assignment
on January 26, 2006.
The record reveals that the Claimant was told that he had to take a random drug
test; and when he reported to the supervisor's office and learned what he was supposed to
do, he left without taking the test. The Claimant's action not only violated Carrier rules,
but also some of the federal regulations requiring testing of railroad employees.
Once this Board has dstennined that there is sufficient evidence in the record to
support the guilty finding, we next turn our attention to the type of discipline imposed.
This Board will not set aside a Carrier's imposition of discipline unless we find its actions
to have been unreasonable, arbitrary, or capricious.
This Board is not unmindful of the lengthy seniority that has been accumulated by
this Claimant. However, this was his second dismissal; he had been previously dismissed
in 1997 for abandoning his assignment. Given that previous background and the
seriousness of the offenses of which the Claimant was found guilty in this case, this
Board cannot find that the Carrier acted unreasonably, arbitrarily, or capriciously when it
terminated the Claimant's employment. Therefore, the claim will be denied.
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AWARD:
The claim is denied.
O RATION-TIBER
DATED: ~ - l 3 - O ~
CARRI~R'AlEMBER
n
DATED: