BEFORE SPECIAL BOARD OF ADJUSTMENT 986
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NATIONAL RAILROAD PASSENGER CORPORATION
(AMTRAK - Northeast Corridor)
Case No. 166
STATEMENT OF CLAIM: Claim of the Brotherhood that:
1. The dismissal of Mr. W. Johnson for his alleged violation of
National Railroad Passenger Corporation Rules G and L was
arbitrary, capricious and without just cause (System File
NEC-BMWE-SD-3190D).
2. Claimant Johnson's record shall be cleared of the charges leveled
against him and he shall be compensated for all wage loss suffered.
FINDINGS:
On October 2, 1992, the Claimant, Warneal Johnson, a track foreman, was guiding
a burro crane through the track terminal at North Philadelphia when Track Supervisor
Patterson believed he smelled alcohol on the Claimant's breath. Subsequently, the
supervisor took the Claimant off the job and both he and the Claimant proceeded to the
station for an alcohol screening.
At the station, Engineer of Track Buechler administered a breathalyzer test to the
Claimant and the results showed an alcohol level of. 121% at 3:30 a.m. and an alcohol
level of. 100% at 3:52 a.m.
On October 9, 1992, the Claimant was advised to attend an investigation to
determine his responsibility for his alleged violation of Carrier Rules of Conduct G and
L. In addition, the Claimant had previously signed a Rule G Waiver on July 29, 1992,
q 8~-
i to to
after testing positive for cocaine and this latest incident would constitute a violation of
the terms of that Rule G Waiver. The Claimant was determined guilty as charged and
dismissed from service on March 2, 1993.
The Organization appealed the dismissal contending that Mr. Buechler never
calibrated the breathalyzer machine before administering the test to the Claimant.
Furthermore, the Organization contends that the Claimant was never "provided with any
confirmation testing of another type, such as a urine screen or blood testing".
The parties not being able to resolve the issues, this matter came before this Board.
This Board has reviewed the evidence and testimony in this case and we find that
there is sufficient evidence in the record to support the finding that the Claimant was
guilty of violating Carrier Rules G and L on October 2, 1992. We accept the positive test
results. Since the Claimant had previously signed a Rule G Waiver on July 29, 1992, this
Board finds that the Carrier acted within its rights when it terminated his employment.
The record reveals that the Carrier engineer had been properly trained to
administer a breathalyzer test. The machine had been calibrated only two weeks before
the incident. When the Claimant's breath was tested on the two occasions it showed
alcohol levels beyond acceptable limits. With respect to the Organization's argument that
the Claimant should have had further testing done at a hospital or other testing facility,
this Board finds that the simple procedures that are required for alcohol testing do not
necessarily require a confirmation test at an independent laboratory. Breathalyzer results
are deemed sufficient when an employee is charged with being at work with alcohol in
2
his system.
The Organization also claims that the Carrier did not provide the Claimant with
sufficient care in its EAP program after the Carrier became aware of the Claimant's
alcohol problems when he signed the Rule G Waiver. However, the record reveals that
the Carrier did have the Claimant interviewed and then there was a recommendation for
individual and group counseling twice a week. It was the Claimant who failed to report
for his outpatient counseling after August 31, 1992
In summary, it was not the Carrier's fault that the Claimant showed up for work
with alcohol on his breath on the two separate occasions. The Carrier made an effort to
help the Claimant with his problem. The Claimant signed the Rule G Waiver. It was the
Claimant who was unwilling or unable to address his alcohol problems.
This Board cannot find that the Carrier acted unreasonably, arbitrarily, or
capriciously when it terminated the Claimant. Therefore, the claim will be denied.
AWARD
Claim denied.
Carrier Mein*
DATED:
4
7 /99
TER~YERS
Neutral tuber
4Or zzationn M2ember
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