AWARD 129 - FAILURE TO COMPLY WITH CONDITIONS OF REINSTATEMENT AGREEMENT IN RULE "G" CASE

Second Division Award No. 12684 (Malin)

"Claimant entered Carrier's EAP for treatment for alcoholism. Under Carrier's drug and alcohol policy, Claimant's return to service was conditioned on his abstaining from alcohol consumption, attending support group meetings, documenting his attendance, and obtaining a support group sponsor. Claimant was advised of these conditions in a July 24, 1991, letter from Carrier's EAP Director. The letter further advised Claimant that failure to comply with the conditions during the next two years would subject him to dismissal.

"On January 23, 1992, Carrier's EAP Director advised Claimant that he had not complied with the conditions of his return to service and gave him ten days to comply. At the hearing, Claimant admitted that he had continue to drink and had not attended the required support group meetings. Claimant also admitted that he did not document attendance at support group meetings and did not obtain a support group sponsor.

"Claimant's dismissal was for failure to follow the EAP Director's instructions and did not involve a physical examination. Prior awards establish that employees returned to service pursuant to the EAP policy who fail to comply with the conditions of their return to service are subject to dismissal. See PLB No. 4544, Award 34; PLB No. 5035, Award 61. Claimant's failure to comply with the conditions of his return to service justified his dismissal."

Third Division Award No. 30125 (Stallworth)

"After carefully considering the facts in the instant record, the Board concludes that, as in Award 28361, 'the Carrier's action was fully warranted.' Claimant violated two conditions of his reinstatement. The reinstatement document stated that Claimant 'must participate in a rehabilitation program as agreed to with the Employee Assistant Counselor, and attend AA and/or DA meetings as prescribed and furnish verification of attendance.' It is undisputed that the Carrier was notified on April 4, 1986, that Claimant had not contacted the Amarillo Council on Alcoholism and Drug Abuse during the prior week, in violation of that condition of reinstatement.

"In addition, the reinstatement document stated that Claimant 'must refrain from failing to protect your assignment and failure to report for duty must be substantiated and verified.' However, Claimant failed to report for work after March 27, 1986. He had apparently been arrested by INS, and on June 20, 1986, the INS notified the Carrier that Claimant would be deported to Mexico on July 8, 1986, from Kansas City, Missouri. He therefore failed to protect his assignment, in violation of that condition of reinstatement. The fact that Claimant reappeared more than two years later does not cure that violation.

"The Board therefore concludes that Carrier did not violate the Agreement by returning Claimant to dismissed status without using the procedures in Article 14. The Board further concludes that Carrier did not abuse its discretion in returning Claimant to dismissed status under the facts revealed in the record.

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"Claim denied."