PUBLIC LAW BOARD NO. 6402
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 124
and )
Award No. T O l
UNION PACIFIC RAILROAD COMPANY )
Martin H. Malin, Chairman & Neutral Member
T. W. Kreke, Employee Member
B. W. Hanquist, Carrier Member
Hearing Date: April 22, 2008
STATEMENT OF CLAIM:
1. The dismissal from service of Mr. M. K. Graves for his alleged violatoin of Union
Pacific Rule 1.5, the Carrier's Drug and Alcohol Policy and Federal Regulations
(Title 49 Part 382 Section 213) was not justified.
2. As a consequence of the violation referred to in Part (1) above, the Claimant shall
now be reinstated to his former position, be paid for all time lost, have his
seniority and benefits reinstated intact, his personal record exonerated of all
charges and receive expenses for attending the hearing.
FINDINGS:
Public Law Board No. 6402 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.
On March 20, 2007, Claimant was notified to report for a formal investigation on April
16, 2007, concerning his allegedly testing positive for an illegal substance during a follow-up
drug test on March 2, 2007. The hearing was postponed to and held on April 23, 2007. Claimant
did not appear for the hearing and it proceeded in absentia. On May 8, 2007, Carrier notified
Claimant that he was dismissed from service.
The Organization contends that Carrier violated Rule 21 by proceeding with the hearing
in absentia. We do not agree. The record reflects that Claimant was given proper notice of the
PLB No. 6402
Award 101
hearing and that he received that notice. The Manager Track Maintenance testified that he spoke
with Claimant the morning of the hearing, asked Claimant whether he was going to be present at
the hearing and Claimant responded that he would not attend the hearing because he did not want
to drive 300 miles round trip to do so. Claimant chose not to attend the hearing of his own
volition. Carrier acted properly when it proceeded in absentia.
The record is clear that on July 2, 2004, after having tested positive for an illegal
substance, Claimant signed a Waiver Agreement under which he accepted a one-time offer to
return to service, conditioned. among other things, on his contacting Carrier's Employee
Assistance Program, completing the EAP-recommended rehabilitation program, being subject to
follow-up drug testing for three years following his return to service and remaining drug free
indefinitely after returning to service. The record is also clear that in a follow-up drug test on
March 2, 2007, Claimant tested positive for marijuana. Carrier clearly proved the charge by
substantial evidence and there is absolutely no basis for disturbing the discipline.
AWARD
Claim denied.
Martin H. Malin, Chairman
B. W. Hanquie T. . Kreke
Carrier Member
see 4
~7I wOg Employee Member
Dated at Chicago, Illinois, August 31, 2008