Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11745
SECOND DIVISION Docket No. 11465
89-2-87-2-147
The Second Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(International Brotherhood of Firemen and Oilers
PARTIES TO DISPUTE:
(Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM:
1. That in violation of the current Agreement, Mr. P. Stiles,
Laborer, Pueblo, Colorado, was improperly removed from service on July 28,
1986.
2. That, accordingly, the Denver and Rio Grande Western Railroad
Company be ordered to compensate Mr. Stiles for all time lost, commencing July
28, 1986 and continuing until he is returned to service.
FINDINGS:
The Second Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
For sometime prior to the genesis of the Claim involved in this
Docket, Carrier has had in place a policy of requiring return to work physical
examinations of all employes who have been absent because of injury or illness. Alcohol and drug screens are a part of these examinations.
On May 21, 1986 Claimant suffered a broken ankle in an off duty,
non-work related, injury. Approximately two months later he presented Carrier
with a release for duty notice from his personal physician. On July 2, 1986,
before being allowed to resume service, he was examined by a Company physician
who administered a drug screen which tested positive for cannabinoids. Claimant was notified that he failed his physical examination and was directed to
report to and cooperate with Carrier's Employe Assistance Counselor.
Form 1 Award No. 11745
Page 2 Docket No. 11465
89-2-87-2-147
Claimant entered Carrier's EAP program and during the next several
months was given six additional drug screens all of which were returned
positive. In March 1987 Claimant was able to provide a-negative test result
and was approved for return to duty. However, because of force reductions,
which occurred in his craft in January 1987, his seniority was insufficient to
allow him to work.
The Organization contends that its Agreement was violated when Carrier held Claimant out of service without following the disciplinary notice
and investigation procedures of Rule 11. It contends that Carrier did not
have reasonable cause to require a urine test in the circumstances of Claimant's absence or injury. Also, such testing is not required by his job, which
is not regulated by the Hours of Service Act. While raising fundamental questions on reliability and other aspects of the tests administered, the Organization argues that the level of cannabinoids reported to have been detected
does not indicate impairment or suggest that Claimant was not capable of
performing his job. Carrier, accordingly, was without a basis for a medical
disqualification of Claimant.
Carrier contends that it has a moral and legal responsibility to
provide its employes with a healthful workplace and has an uncontested right
to establish minimum physical standards for employment. In meeting this
responsibility it has made alcohol and drug screens a part of all Company
physical examinations for all employes. These examinations are administered
in situations of pre-employment, promotion or return to work when absent
because of furlough, illness or injuries sustained both off the job and on
duty. Withholding employes from service who are unable to pass drug and
alcohol screens, in such circumstances, it is argued, is not a disciplinary
matter but rather a situation of failure to meet Carrier's physical requirements, thus a situation of being medically unfit for duty.
Both sides, in support of their positions, have submitted a plethora
of material, [various PLB and NRAB Awards, articles from medical journals and
newspapers on drugs and drug testing and Federal and State Court decisions],
which has been carefully reviewed. Additionally, during the time we have had
this matter under consideration, the United States Supreme Court decided two
cases bearing directly on the subject of drugs and drug testing in the railroad industry -
Skinner v. Railway Labor Executive's Assn., 489 U.S. ,
(1989) and Conrail v. Railway Labor Executive's Assn., 489 U.S. ,
(1989) - of which we have taken judicial notice.
In
Skinner, the Court, among other things held that the drug and
alcohol tests mandated and authorized in certain circumstances and situations,
by the Federal Railroad Administration, were reasonable under the Fourth
Amendment even though there may be no suspicion that any particular employe
was impaired. The Court opined that the Government's interest in regulating
the conduct of railroad employes engaged in safety sensitive tasks presented a
special need situation and that FRA regulations were designed not only to
discern impairment but also to deter it.
Form 1 Award No. 11745
Page 3 Docket No. 11465
89-2-87-2-147
In Conrail the narrow issue decided was whether the unilateral addition of drug testing in return to duty and/or periodic physical examinations
was to be treated as a major or minor dispute under the RLA.
Careful study of the two decisions as well as full review of all of
the material in the record support a clear conclusion that the investigation
and discipline provisions of the Agreement, (Rule 11), were not violated when
Carrier refused to certify Claimant as medically qualified to resume service
until he was able to successfully supply a negative drug screen.
The Claim will be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
'
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 19th day of July 1989.