Brotherhood of Maintenance of Way E mployes ) Division - lBT Rail Confere nce )
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And )
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Norfolk Southern Railway Co mpa ny (Former )
Norfolk & Western Railway Co mpan y) )
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Case No. 220 Awa rd No. 220
Rich ard K. Hanft, Chairman and Neutral Member
D. M. Pascarella, Employee Member
D. L. Kerby, Carrier Member
STATEMENT OF CLAIM:
"Claim of the System Comm ittee of the Brotherhood that:
The Carrier's discipline (dismissal) of Mr. L. Brown, issued by letter dated May 13, 2014, in connection with his alleged failure to comply with the Carrier's policy o n Alcohol and Drugs and the instructions of the Medical Director in his letter dated April 29, 2013 in that his specimen submitted on February l 1, 2014 for a drug screen was positive for cocaine, was not pursuant to a fair, impar tial investiga tion (Carrier's File MW-DECR-14-21-13B- 127 NWR).
.As a consequence of the violation referred to in Part 1 above, Claimant L. Brown shall be reins tated witJ1 all rights and privileges and pay for all lost time."
fiINDTNGS:
Special Board of Adjustme nt Board 1048, upon tJ1e whole record and all of the evidence, finds and holds that Employee and Car rier 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 iliereo n and did participate therein.
This Award is based on the facts and circumstances of this particular case and shall not serve as a preceden t in any other cases.
After tho ro ughly rev iewing and considering tJ1e rec o rd and tJ1e pa rti es' pr esen tations, the Board finds that the claim should be disposed of as follows:
Special Board of Ad justment No. 1048
Award No. 220
Claimant in this matter entered service on.June 4, 1979 as a Track Laborer. On October 23, 2012 Claimant failed a drug test, was removed from service and was admitted to Carrier's D rug and Alcohol Rehabilitation Service ("DARS"). Claimant completed DJ\RS services on April 4, 2013 and was reinstated to service under the express conwtion that failure to keep his system free from prohibited substances would subjec t him to dismissal. Those were the terms of reinstatement Claimant agreed to.
In ;l eb ruary, 201 4 Claimant was assigned as a hi-rail crane operator. As such, he was required to possess a Commercial Driver's License ("CDL"). Possession of a CDL sub jects the holder to rand om dru g screening pursuant to Department of Transportation Regulations. On J•cbruary 11 , 20 14 Cla imant was required to submit to a random urine scree ning. T he test results
came back pos itive for cocaine. Claimant, based on the test results, was again removc<l from service and summoned to a formal in ves tigation.
After three (3) postponements, the investigation was held on May 7, 2014. Claimant did not appear at the investigation, but his representative did. J\ fter attempts to contact Claimant via telephone failed, the inves tigation procee ded iJJ t1bse11Ji11. C laimant was found to have failed to comp ly with the Carrier's Policy on Alcohol and Drugs and the instructions of Carrier's Medical
Director to keep his system free from prohibited substances and, as a result, was dismissed by letter dated May 13, 2014.
T he O rganization does not dispute the findings of the drug test or the propriety of dismissa l as the penalty for the second violation of Carrier's Drug and J\ lcohol policy. T he Organization docs, however, strenuously maintain that Claimant was denied a fair and im partial hearing because it was held in t1bse11Jia. T he Carrier avers that the evidence e ntered at the investigation showed a discrepancy in the address used by the Carrier to con tact claimant to apprise him of the impending investigation. The Organization asserts that an investigation held with out proper notice is fatally improper under the Agreement and reasons that no discipline that flows from the improper investiga tion can carry any va lidity and therefore, all charges against the Claimant must be dismissed.
The Board's review of the record developed on the property reveal::;, however, Carrier's
Exhibit 3 that is the letter sent by Certified Mail Return Receipt Requested to Claimant on J\ priJ 7, 20 1 4 su m moning him to the investigation and Carrier's Exhibit 4, a USPS digital receipt showing Certified Parcel 91719999991 703379189023, the letter referenced in Exhibit 3, that was signed for by Claimant on Apr il 9, 2014. Hence, the Organization's argument that Claimant did not receive proper notification to attend the investigation is witho ut merit.
Likewise, the Organization's contention that the hearing held i11 abJc11/ia deprived Clain1antof
duc procl:ss is addressed by the Syste m D isc iplin e Rule that states in relevant part:
Spc:ci:il Uo :m J o i ,\ J justtm:nc No . IU.JX
Aw:ud No. 220
.. )f rhc ch:irgnl t·mplo yn · fails to :m rn d thl" duly cllclluk <l invcsti1,r:1tion, without ha,·ing prm·ic.kJ c\'idcnct· of good c:tll t· for such failun· ro attt-ml . the Carrier may pmcn·J with rhe in,·cstih rio n 111 ,1h1r11ti,1 and such pmcce<ling 111 ,1/umti,1 :.h:ill not consrin1re the l>:isis for Ml)' claim with rc:spc·.c r to such c.·mployn•'i- ri1,:hr ro comrncnu1l Jue proccs:,."
( ;i,•cn the e n J l·nct · :u.ld uced dunng the handling of the m:im·r on rhe property, the Boord
can find 1ll l b:i:1.s to disturb the ,k ci:.ion ,n -,chn l m, the propnty. The Chim i.-. denied.
AW.\ lll):
Tht·Claim is <k nit•d.
J .,c .
I) . M. P:i:.carcll:i, l·'.mpluycc Member D. I.. Kl·rby, C:,rricr Mcml>cr
Dared at Chic:1gn, Ulinrns hhru:iry :!,:!OH