William R. Miller, Chairman & Neutral Member Michelle McBride, Carrier Member
Louis R. Below, Employee Member
STATEMENT OF CLAIM:
FINDINGS:
Public Law Board No. 7048, 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 have participated in accordance to the Agreement that established the Board.
The facts indicate Claimant was a Sectionman working in Hardin, MT, on June 4, 2020, when he was subjected to a FRA Random Worker test that he allegedly failed and because of that Claimant was directed to attend a formal Investigation on June 19, 2020, which was mutually postponed until July 14, 2020, concerning in pertinent part the following:
On July 21, 2020, Claimant was notified that he had been found guilty as charged and was dismissed effective immediately.
It is the Organization’s position that Claimant should have been granted a Waiver of Investigation for a first time violation of the Carrier’s Drug and Alcohol Policy. Claimant and the Organization never denied that Claimant tested positive for marijuana on June 4, 2020. It asserted that Claimant admitted his error and complied with Carrier requirements for treatment. It argued that Claimant was singled out and not offered the 1.5 Waiver for a first‐time offense and it requested Claimant be reinstated to service and the claim be sustained as presented.
It is the position of the Carrier that the claim is procedurally defective because it failed to identify the governing Agreement under which it was filed or any Rule that was allegedly violated. It asked that the claim be dismissed and/or denied without reviewing the merits.
Turning to the merits, the Carrier stated the record shows that Claimant admitted to testing positive for the use of marijuana on June 4, 2020. It argued Claimant was not eligible for a Waiver because he had an active Level S violation on his record at the time of the instant violation, therefore, dismissal was appropriate. It asked that the discipline not be disturbed and the claim remain denied.
The Board has reviewed the transcript and record of evidence and is not persuaded by the Carrier's procedural argument. It is determined that the case will be resolved on its merits.
There is no dispute between the parties that on June 4, 2020, Claimant reported to work on TTPX0007 near Hardin, MT, and was informed he had been selected for a FRA Random drug test. The results of that test were provided to the Carrier on June 10, 2020, and showed Claimant had tested positive for a controlled substance – marijuana.
The Organization argued that the Claimant should have been granted a Waiver whereas the Carrier argued that the Claimant was not eligible for a Waiver because he had an active Level S violation on his record. Review of Section IV.F of BNSF’s Violations Corporate Rule supplementing BNSF’s current Use of Alcohol and Drugs Policy reveals that it states:
"An employee is eligible for a waiver only if it's his a her first Alcohol a Drug violation and only if of the he or she does not have an active Level S violation at the time Alcohol a Drug violatio n." (Underlining Board's emphasis)
At the time of the subject dispute Claimant had an active Level S violation on his record. Claimant signed a Waiver of Investigation admitting to violating MWOR 1.6 and MWOR 1.13 when Claimant failed to comply With his Foreman's instructions on November 20, 2019 and accepted assessment of a level S Record Suspension With a One-Year Review Period, therefore, the Carrier was correct when it did not grant the Claimant a Waiver of Investigation for the drug violation of June 4th• The record is clear that the Carrier met its burden of proof that Claimant was guilty as charged.
The only issue r emaining is whether the discipline was appropriat e. At the time of the incident Claimant had approximately 12 years of service. Claimant's violation in this instance was his second serious violation Within an active review period and made him subject to possible dismissal. Based upon a generally good work record and Claimant's truthfulness about his offense the Board finds and holds that discipline was appropriate, but dismissal was excessive and is reduced to a lengthy suspension that is corrective in nature. Claimant will be returned to service With seniority intact, all benefits unimpaired, but with no back-pay. Because of the serious nature of the instant offense a Three Year Review Period should be attached to the Claimant's Disciplinary Record upon Claimant's reinstatement. The Board also forewarns the Claimant that after reinstatement the Claimant should be careful to adhere to all Carrier and Safety Rules as failure to do such could result in harsher discipline depending upon the severity of a subsequent violat ion .
AWARD
Claim partially sustained in accordance With the Findings and the Carrier is directed to make the Award effective on or _befoe:e 3 daM lowing the)sate the Award was signed.
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William R Miller, Chairman & ember
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Michelle McBride, Carrier Member Louis R. Below, Employee Member
Award Date:
March 25, 2022 -