PARTIES Brotherhood of Maintenance of Way Employes
 TO and
 DISPUTE Southern Pacific Transportation Company (Western
 Lines)
 STATEMENT That the Carrier's decision to dismiss
 OF CLAIM Claimant, Dennis Wesley from its service was
 excessive, unduly harsh and in abuse of
 discretion, and in violation of the terms and
 provisions of the current Collective
 Bargaining Agreement.
 That because of the Carrier's failure to prove
 and support the charges by introduction of
 substantial bona fide evidence, that Carrier
 now be required to reinstate and compensate
 Claimant for any and all loss of earnings
 suffered, and that the charges be removed from
 his record.
 FINDINGS



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notice contained in a letter dated September 29, 1988. The
 latest dismissal resulted from a failed urinalysis test which
 was part of the Carrier directed reinstatement physical
 examination.
 The Claimant was first employed on April 6, 1981. He was
 furloughed later in the year and reemployed on July 25, 1983.
 From June, 1985 until his initial dismissal on September 9,
 1987, he was counseled on numerous occasions for absenteeism.
 During this period he was suspended twice and issued thirty
 demerits, all for absence without authority. On September 10,
 1987, the Carrier sent a certified letter to the Claimant
 indicating that he had been absent without proper authority
 since August 7, 1987 and was therefore terminated. The letter
 went on to inform the Claimant of his right to request a hearing
 under Rule 45 of the Agreement. The Claimant requested a formal
 investigation which was granted by letter dated December 1,
 1987. The letter set the hearing for December 21, 1987 at the
 office of the Division Engineer, Tucson, Arizona. The purpose
 of the hearing was to establish the Claimant's responsibility,
 if any, in violating Rule 604, of the Rules & Regulations for
 the Government of Maintenance of Way and Structures &
 Engineering Department Employes of the Southern Pacific
 Transportation Company, those parts which read:

      Rule 604: DUTY REPORTING OR ABSENCE: Employes must report for duty at the designated time and place. They must not absent themselves from duty without proper authority.


      Continued failure by employe to protect their employment shall be sufficient cause


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      for dismissal.

The evidence presented at the hearing did not alter the Carrier's position that the Employe failed to protect his position and the September 10, 1987 dismissal was reaffirmed. However, because the Claimant contended his absenteeism was due to his alcohol addiction, the conducting officer agreed to consider any recommendations made by the Employe Assistance Counselor. And if the Claimant's problems were related to his alcohol addiction, he would be offered a conditional reinstatement, if recommended by the counselor..
 The Union subsequently requested the Claimant's reinstatement with seniority rights intact following the completion of his treatment for alcoholism. The matter was later appealed to Mr. Harvy Moles (July 6, 1988) and eventually to Mr. Moles successor, Mr. R. J. Stuart (August 12, 1988). On August 15, 1988, an agreement was reached whereby the Claimant would be returned to duty on a conditional- basis. The conditions associated with his reinstatement included: total abstinence from alcohol and other drugs, random unannounced alcohol/drug testing, participation in a rehabilitation program, a Company-directed medical examination and a two year probation. A violation of any of these.conditions would result in a return to dismissed status.
 As part of the Company-directed medical examination, a urinalysis was completed. The results showed-the-Claimant tested positive for alcohol at a level of .17. He was returned to dismissed.status.

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During his hearing on December 21, 1987, the Claimant admitted to problems with alcohol, but testified that he had those problems under control. He attributed his alcoholism to personal problems which had started the previous summer. However, a review of the Employes record shows that his problems began long before 1987. In fact, his absenteeism started in 1985. He was given numerous letters of warning relative to Rule M810, regarding his absence without proper authority and his failure to protect his employment. These warnings continued into 1986 and during that year the Claimant signed at least three waivers for the same rule violation.
 This Board appreciates the unfortunate circumstances in which the Claimant finds himself. However, there is every indication that the Carrier has attempted to assist the Employe in retaining his employment. They have been extremely flexible in giving the Employe letters of counsel without additional penalty, they have allowed him to sign waivers, they have tried demerits and suspensions. And they finally agreed to a conditional reinstatement. None of these things worked. Before an employe can be helped, he must want to be helped and he must make a sincere effort. When the Claimant reported for his physical and his urine showed positive for alcohol at a level of.17, it demonstrated an unwillingness on his part to make an honest effort to turn his situation around. The Carrier cannot be held accountable for the Employe's failure to uphold his end of the bargain.

      The Claimant was given many opportunities to correct his


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behavior, but there was no concrete evidence that he made a serious effort. He was afforded a full and fair hearing. The

 Carrier was justified in terminating the Claimant.

                          AWARD


The claim is denied.

                            Ca/ J. J. Zamperini N~utra1


Submitted:

 December 28, 1989
 Denver, Colorado

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