Org. File 1573-57=7830
Co. File TRN 0-5-10
SPECIAL ADJUSTMENT BOARD N0. 18
(Train Service Panel)
PARTIES TO DISPUTE: United Transportation Union-
Decision No. 5734
Case 832
Supplemental List No. 91
Southern Pacific Transportation Company (Western Lines)
STATEMENT OF CLAIM: Request of Brakeman Greg K. Casassa, Shasta
Is
ri-c ; 11regort-Mvision, for reinstatement to service and
replacement of wage loss resulting from his removal from service
on December 23, 1984, and his dismissal from service on January
23, 1985, because of his alleged violation of Rules 801 and 802
of the Rules and Regulations of the Transportation Department,
which occurred on December 23, 1984.
The Superintendent reinstated Claimant on June 20, 1985.
After passing his physical and proficiency examinations. he
reported for service on July 3; therefore petitioner revises
the claim to one for wage loss extending from December 23, 1984
through July 3, 1985.
STATEMENT OF FACTS: Brakeman Casassa was working in pool
rTF-T-get service on December 23, 1984. He went on duty at
Eugene Yard at 4:00 a.m. and departed on Extra 8509 West, en
route Klamath Falls. Shortly before 1:30 p.m. part of this
train derailed along the shore of Klamath Lake, near Klamath
Falls. The train crew, including Brakeman Casassa, assisted in
cleaning the derailment and then brought the head part of the
train to Klamath Falls, arriving there at 2:50 p.m. A
trainmaster interviewed the crew from 3:20 p.m. until 4:20 p.m.
The crew tied up at 4:35 p.m.
Within five to ten minutes of their release from duty the
assistant superintendent ordered the trainmaster to summon the
crew to the yard office and to ask each of them to submit to a
urinalysis. The Claimant returned within an hour and was asked
to voluntarily provide a urine sample at a local hospital. The
Claimant refused to do. so arguing there was no probable cause
for the Carrier's request since human failure--in his opinion-was not a factor in the derailment.
The Claimant did indicate he would provide a sample the
next day to his own doctor. This was not satisfactory to the
Carrier and he was removed from service. Subsequently, the
Claimant was sent the notice which reads in pertinent part as
follows:
' Decision No. 5734
"You are hereby notified to be present at the office of
the Trainmaster, Klamath Falls, Oregon, 9:00 a.m. Thursday,
December 27, 1984 for formal investigation to develop the
facts and place responsibility, if any, in connection with'
your alleged failure to fill out consent form for
Toxicological Test and refusal to take Toxicological urine
test at Merle West Medical Center, Klamath Falls, Oregon,
as instructea
Dy
frainmaster-Road Foreman of Engines C. J.
Maben, at 6:05 a.m. December 23, 1984.- You are hereby
charged with responsibility, which may involve violation
of that portion of Rule 801 reading:
"'Employes will not be retained the service who
are careless of the safety of themselves or others,
insubordinate . .quarrelsome . ~ . or who conduct
themselves in a manner which would subject the
railroad to criticism.'
"the second paragraph of Rule 801, reading:
"'Any act of hostility, misconduct or willful
disregard or negligence affecting the interests of
the Company is sufficient cause for dismissal and
must be reported.'
"and that portion of Rule 802 reading:
"'Indifference to duty, or to the performance
of duty, will not be condoned.'
"of the Rules and Regulations of the Transportation
Department of the Southern Pacific Transportation
Company."
Subsequent to the investigation, the Claimant was dismissed.
However, he was reinstated to service on June 20, 1985 without
prejudice to his claim for lost wages.
FINDINGS: The Board finds, after hearing upon the whole record
and all evidence that the parties herein are Carrier*and Employe
within the meaning of the Railway Labor Act, as amended, that
this Board is duly constituted by Agreement and it has Jurisdiction of the parties and the subject matter, and that the parties
were given due notice of the hearing held.
DECISION: At the time of his refusal to Drovide a urine sample
e only reasons given by the Claimant were his belief that the
Company-had no probable cause since man-failure was not a
-2-
' Decision No. 5734
factor and his contention that a test should be done under the
supervision
of
his personal doctor. Thus, the Board is limited
to these reasons when considering whether his refusal to comply
with the Carrier's directive was justified.
With respect to the probable cause objection, it is the
conclusion of the Board that this was not a valid basis, under
the facts and circumstances of this case, for the Claimant's
refusal. There is no convincing evidence in the record that
human failure could have been or was ruled out, at the time
testing was directed, as the cause or contributing cause for the
derailment. Moreover, it is not ultimately fatal to the issue
of probable cause that the crew continued in service after the
derailment. In some cases (alcohol) this may affect the
validity of test results but it does not nullify the Carrier's
right to test for other substances (narcotics etc.) where
contemporaneous testing isn't as critical to the validity of
the test relative to Rule G.
With respect to the Claimant's insistence that the testing
be done under his doctor's supervision, this does not mitigate
his insubordination. It is the Carrier's, not the Claimant's,
right to establish reasonable rules and issue directives
pursuant to those rules. It is the Claimant's obligation to
"comply now and grieve later"
if
he believes the order to be
unreasonable. There are very narrow exceptions to this rule
and, given there was probable cause for the testing, none
.apply in this case.
In view
of
the foregoing, the Claim is denied,
(~
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. erno
Chairman and Neutral Member
W
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L.
'Torrey, arrie Member
Lil
y a a er, mp Member
Dated this day of
Mo., 1707
San Francisco, alifornia..