PUBLIC LAW BOARD NO. 6302
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
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Case No. 77
and )
Award No. 77
UNION PACIFIC RAILROAD COMPANY
)
Martin H. Malin, Chairman & Neutral Member
D. D. Bartholomay, Employee Member
D. A. Ring, Carrier Member
Hearing Date: September 15, 2005
STATEMENT OF CLAIM:
1. The dismissal of Track Foreman R. P. Pruenda for his alleged violation of Rule
1.5 and Carrier's Drug and Alcohol Procedures was without just and sufficient
cause and in violation of the Agreement (System File W-0448-153/1398878D).
2. Track Foreman R. P. Pruneda shall now be reinstated to service with seniority and
all other rights unimpaired and compensated for wage loss suffered.
FINDINGS:
Public Law Board No. 6302, upon the whole record and all 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.
On November 18, 2003, Carrier notified Claimant to report for an investigation on
December 2, 2003. The notice charged Claimant with allegedly violating Rule 1.5 and Carrier's
Drug and Alcohol Policy as evidenced by a positive drug test on November 12, 2003. The
hearing was postponed to January 15, 2004. Neither Claimant nor an Organization representative
appeared at the hearing. After delaying the hearing for approximately one hour and attempting to
locate Claimant without success, Carrier proceeded with the hearing in absentia. On January 30,
2004, Carrier notified Claimant that he had been found guilty of the charges and dismissed from
service.
The Organization contends that Carrier violated Rule 48 by proceeding with the hearing
in absentia. The Organization maintains that Claimant was precluded from attending the hearing
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because he was caring for his ill parents. Regardless of whether Claimant's need to care for his
ill parents prevented him from attending the hearing, the record is devoid of any evidence that
Claimant made any effort to contact Carrier or the Organization to request a further
postponement. The record also contains no evidence that Claimant's parents' illnesses precluded
him from contacting Carrier or the Organization to make such a request and we consider it highly
unlikely that Claimant was precluded from telephoning or otherwise contacting Carrier or his
representative. Claimant simply chose not to attend the hearing without contacting anyone and
may not now complain about the hearing proceeding in absentia.
The record established that on November 12, 2003, Claimant backed a Carrier vehicle
into another Carrier vehicle and, as a result, was properly subjected to a reasonable cause drug
test. The record further established that the drug test fully complied with all required procedures
and safeguards, that Claimant's urine specimen tested positive for cocaine, that Claimant
requested that the split sample be tested at a different lab, and that the split sample also tested
positive for cocaine. Carrier clearly proved the charges by substantial evidence.
Accordingly, we turn to the penalty imposed. The record reflected that on August 19,
2002, Claimant tested positive for marijuana. On August 29, 2002, Claimant was offered a onetime opportunity to return to service on a leniency basis. Claimant accepted the offer. One of the
conditions of Claimant's return to service specified that if he violated Carrier's Drug and Alcohol
Policy again within ten years, he would be dismissed permanently. Claimant returned to service
on December 12, 2002. The positive test for cocaine occurred less than one year following his
return to service. Under the circumstances presented, we cannot say that the penalty imposed
was arbitrary, capricious or excessive.
AWARD
Claim denied
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Martin H. Malin, Chairman
D. A. Ring, D.D. .loma
Carrier Member Employee Member
Dated at Chicago, Illinois, January 20, 2006
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