Carrier File go. 1:16816

                              trTU Case No. 240-57-5437,98D

                              ClaiMant: C, L. Disc'uaer


PARTIES TO THE II ISPUTfi

 UNITED TRANSPORTATICN MTIQN
              AND


U:fION PACIFIC RAILROAD COMPANY
STATEMENT OF CM-AM
      Appeal of Conductor C. L, Dischnrr, tfect Colton Oiv;ston, .for reiaatatement to service with seniority linLmpaired, and for replacement of wane loss resulting from his suspension frog service on Sover?er 3, 1997, atd his subsequent dismissal from service on December 24, 1997, until returned to service. In addition, we request his wage loss resulting from atcending an investigation on December 17, 1997. Finally, we ask that this incidzat be expunged from Mr. Dischrer's persona' record.


FINDINGS

 Upon the wiwle record and all the evidence, the Board finds that the parties herein are Carrier and Znployees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the parties and the subject matter.

 The Claimant was a Conductor on the Los Angeles Division. On May 3, 1995, he was selected for a Dot random drug test. He tented positive for alcoho. and was disrussed. On August 25, 199s, he was reinstated on a conditional reiastatarnent and signed what has become a standard conditional reinstatement agreement. Parts of the agreemeat included the Claimant"s agreement he would abstain from alcohol. or other drugs, he would submit to random testing, he would participate in a rehabilitation program. and would be in probationary status for at leash two years. At the end of the two years, "the Employee Assistance Manaver aril:, make a recommendation to continue or terminate your conditional raixt~tdttkrnent .

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In the interim, the Union Pacific acquired the Southern Pacific Railroad Company. The 9P employees were g.Even notice on March 1, 1997, that they would, slow fall under the rules of tire Union Pacific Railroad Company. On November 5, 1997, approximately two months after his two year probationary period could have ended, the Claimant was pulled out o£ service for an unannounced "follow-up" test. He tented positive for alcohol and eras charged. Following the formal Investigation which was held on December 1^, 1997, the Claimant was permanently removed from se=vice-

                      CARRrERI S POSTTION


The Carrier suggests the issues to be decided is ta?s case are: 1) Did the Claimant have a measurable .amount of alcohol in his system while on duty at oemco, California on November 9, 1997? 2) Provided Issue 1 is answered in the affirmative, under these circumstances, was Carriers dismissal of Claimant reasonable and properly within the ciscraticn and prerogative of management to discipline its employees? They assert the answer is yes in both cases.

 The Carrier argues that the Claimant was subject to followup testing. At no time, they contend, was the Claimant removed from his probationary status. His conditional reinstatement agreement provided that hic probationary status would continue at 12a&t two years. At no time did the Carrier advise him that his probationary status was terminated. Furthermore, all employees were notified on March 1, i9 g7, that they would be covered under tae riles of the Union Pacific. Railroad Company. Tbose rules automatically set the follow-up testing period for conditional reinstatements following drug abuse at three years. The Carrier asserts that at no time during the testing did the Claimant indicate he was not eligible for the testing. in addition, he knew it was a follow up because he was the only one tested.

 The Claimant was discharged for violating Rule 1.5. The Carrier insists the current rule infraction happened lese than three years after the first. The Claimant, they assert, admitted to having an alcohol problem, and a second offense within a ten year pe.riod warrants diamiasal under the Union Pacific Railroad's policy.

                  ORGrANILAZIQN'S __EQS=TIGN


The organization points out that while the Carrier did not terminate the probationary period, they did not notify the Claimant that it was extended. They proffer the agreement which provided that the Employee Asaistaace Manager would make a recommendation after the two year period or, whether to extend or end the conditional reinata,temen:4.. The Organization asserts -hat when the Claimant heard nothing, he had every reason to believe
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he was no longer in a conditional status. Therefore, they insist, the Carrier had no prerogative to conduct an unannounced follow-up teat. The argue that this test should be disregarded since it was not a proper test.

 The Organization also argues that the Carrier's contention that the Union Pacific policy supersedes the )bilateral agreement between the Claimant and Southern Pacific is flawed. They assert, the Carrier Cannot Place new conditions on an agreement that was signed nearly two years before. When the union Pacific acquired the SP, they took on all its obligations, including the agreement with. the Clainant.

 The organization also contends the Carrier prejudged the Claimant when they withdrew any opportunity for him to use the EAP to correct his condition and seek reinstatement, Added to this, they arrnxe, was a f2awed transcript of the haarina. The Carrier did not provide a complete and accurate transcript which could have been reviewed by the Beard, which is a fatal error.

 The Organization also argues that the test and the equipment used were flawed and cannot be trusted to be accurate.

      Finally, the organ rzatior asks = he Board to coAaider the

Claimant's sta_emant at hearing. They point out that tie Claimant believes a better rehabilitation program would have prevented his recidivism. They also believe the Claimant shows remorse, believes he is a good employee and wants the chance to prove hinself with one last chance.

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This Board has reviewed the record and believes the Carrier wan within its rights to heat the Claimant for a follow-up test. Any qucatien in thin regard must be decided in favor of the Carrier. Admit=wily the Claimant dire not receive word that he was being continued on Conditional status, however, he was not told ht was returned to regular employment status. If he hail any doubts, he should have asked kis :A Counselor or contact.

 What's even more damning to the Claimant is the fact that he
 apparently abstained from alcohol use during his two years, but,
 once he allegedly thought he was clear of these follow-up tests
 he once again began drinking. While his rehabilitation program
 may not have been as good as the one he participated i» most
 recently, it was good enough to keep him sober for over two
 years. At some point, an employee must assume responsibility for
 his/her own behavior. It doesn't matter, that no one has beers
 injured on his crews in :8 y$arB, he may have been just lucky if
 he reported to work with measurable alcohol in his system at any
 time. The resaon for the rule is to protect the safety of
 employees and prevent unnecessary damage to property.
 a

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one troublesoms question for this Hoard is whether the Claimant's 28 years of service is ie mitigating factor. Certainly, the Claimant is approaching the time in his life when he will have difficulty obtaining ocher employment. Furthermore, his record, except for these two incidents, appears to be very good. iJzere are only two outer disciplinary actions on his x*cordt for one he was counseled and for the other he received a Letter of Reprimand. Those both happened in 1991. For these reasons, the Board does feel the Claimant deserves another chance. However, he should be aware that this will be a conditional last chance reinstatement, Without pay, but, with his seniority unimpaired. This Board proposes no time limits on the Carrier's right to subject the Claimant to unannounced follow-up &Nuglalcohol tests.

                          AWARD


The claim is sustained to the extent outlined above-

                                  a/

            ^aro ' Na rini

            Chairman eutral Member


                                              s


Qt.U. IL 40
 Daniel E. Torrey J. Kevin Klein
 Carrier Member Employee Member

 This-22.,day of Janrv_, 1949. Denver, Colorado

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