r~





                                File 920398


        Parties Brotherhood of Maintenance of Employes

        to and

        Dispute Union Pacific Railroad Company

        (Former Missouri Pacific Railroad)

        Statement

        of Claim: 1. Carrier violated the Agreement, especially Rule 12, when

        H. P. Johnson (SSN 429-23-2979) was assessed 45 days actual

        suspension from service on May 20, 1992.


                2. Claim in behalf of Mr. Johnson for wage loss suffered during the time out of service and removal of said discipline from his record.


        Findings: The Board has jurisdiction of this case by reason of

        the parties Agreement establishing this Board therefor.

        The Claimant, Machine Operator H. P. Johnson, on April

        7, 1992 was operating machine BR26 in the North Little Rock

        Yard. The machine stopped after proceeding through a switch

        in order to throw the switch. As a result of throwing the

        switch, the Claimant alleged that he had injured his

        shoulder.

        The Carrier policy is that when an employee is injured

        and there is no readily apparent cause, the Employee is drug

        tested. The Claimant had reported the injury to his Foreman

        asserting that it was a hard switch. The Claimant was taken

        to the hospital where they did not find any apparent injury

        to his shoulder or his back and he was tested for drugs

        which resulted in a positive test for marijuana (267.7

        nanograms per milliliter). He was dismissed from service

        therefor, on May 23, 1992, for his violation of Rule G.

        As a result of a formal investigation on the charge of

        sustaining a personal injury on April 7, Carrier concluded

        culpability and assessed him 45 days actual suspension for

        violation of Rule 607.

        The Claimant was accorded the due process to which

        entitled under his discipline rule. The notice of

        investigation was clear and precise.

        There was sufficient evidence adduced to permit the

        Carrier to reach the conclusion that it did. There- was a

        difference of opinion expressed by both Track Inspector

                Maxwell and Foreman Dixon as to whether it was the tension

                        -2- Award No. 591


        on the switch was such as to cause the injury. While there was tension on the switch there was not such tension as would have caused injury. In any event the conflicting testimony as to the tension was such that it permitted Carrier to draw a conclusion.


        The Union introduced a medical prescription for Ibuprofen from the Baptist Memorial Center that was prescribed for the Claimant. Whether he was injured or not, the least that may beinferred from the prescription was that the Ibuprofen was prescribed to quiet the Claimant down. The concomitant drug test, however, did indicate that the Claimant was under the influence of 267.7 nanograms of marijuana, a mind altering drug.


        The Claimant exercised his right under the Companion Agreement to enter a rehabilitation program. He was a Rule G violator at the time that he was tested.


        The discipline assessed was extreme and should be reduced to 15 days actual suspension.


Award: Claim disposed of as per findings.

        Order: Carrier is directed to make this Award effective within thirty (30) days of date of issuance shown below.


                  o,


S. A. Hammons, r. Employee Memo K thy lexa der, t;arrier Vember

rce~ ~ s,L

Arthur T. Van Wart, Chairman

and Neutral Member


Issued November 27, 1993.