Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11894
SECOND DIVISION Docket No. 11843
90-2-89-2-178
The Second Division consisted of the regular members and in
addition Referee Donald E. Prover when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
1. That the Consolidated Rail Corporation (CONRAIL) violated the
current agreement when on January 3, 1989 Electrician (Lineman) F. L. Reid was
improperly dismissed from service at Toledo, Ohio.
2. That Claimant F. L. Reid be restored to service with seniority
unimpaired, paid for all wages lost and compensated for all insurance, vacation and other benefits lost and his record cleared.
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.
As a result of a Trial held on December 20, 1988, the Claimant was
dismissed from service. The Claimant was charged with failure to comply with
the Carrier's Drug Testing Policy.
A drug screen test given as part of Claimant's return to duty medical examination on September 28, 1987, was positive for Cannabinoids. On
September 30, 1987, Claimant was notified he was disqualified for service
pending further examination. At the same time Claimant was advised to rid his
system of Cannabinoids and other prohibited drugs and to provide a negative
urine sample by November 14, 1987. It was also recommended to Claimant that
he contact the Conrail Employee Counselor. Early in November, 1987, Claimant
provided a negative urine sample and was notified on November 9, 1987, that he
was qualified for return to service on such date. The following was included
in the letter to the Claimant:
Form 1 Award No. 11894
Page 2 Docket No. 11843
90-2-89-2-178
"During the first three years following your
return to work you will, from time to time, be
required by me to report to a medical facility
for further testing in order to demonstrate that
you are no longer using Cannabinoids or other
prohibited drugs. Should a further test be
positive, you may be subject to dismissal by
your department for failure to follow proper
instructions."
On November 7, 1988, Claimant provided a urine sample that was posi-
tive for Cocaine. Trial was held on December 20, 1988, and Claimant was noti
fied under date of January 3, 1989, that he was dismissed from service.
We have reviewed the transcript of the Trial and find that it was
conducted in a fair and impartial manner. No exception was taken to the
notice of the Trial nor to the positive results of the November 7, 1988 urine
sample.
The Employees have made several arguments, taking the position that
the charge against the Claimant was not proper, that Claimant was possessed of
a disease, that Rule 8-J-1 was violated and that Carrier's action in dismissing Claimant was arbitrary, capricious and excessive.
The Board upon reviewing the record of handling cannot find anything
improper with the charge. In fact the charge was clear and precise. While
this Board does not consider itself a medical authority it is not aware of any
medical authority that considers the use of Cocaine to be a disease. Rule
8-J-1, cited by the Employees, pertains to periodical physical examinations.
Claimant's examination on September 28, 1987, was a return to duty examination. Unless otherwise prohibited by Agreement, a Carrier may properly give
an employee returning to duty a physical examination.
Conrail employees in February, 1987, were notified of its Drug Testing Policy. Various tribunals have upheld the Policy as being proper and reasonable. See Award 96 of SBA 909, Award 316 of SBA 910, Awards 88 and 92 of
PLB 2720, Awards 29 and 32 of PLB 4410 and Second Division Award 11761. Claimant, even if he did not receive the February 20, 1987, letter, as alleged, was
made fully aware of the Policy in letters dated September 10, 1987, and November 9, 1987, respectively. Claimant, by testing positive for Cocaine on November 7, 1988, was clearly in violation of Conrail's Drug Testing Policy and the
instructions given to him in letter dated November 9, 1987.
Form 1
Page 3
Award No. 11894
Docket No. 11843
90-2-89-2-178
In considering the seriousness of the charge and the facts of record
as presented in this case we find that Carrier's dismissal of Claimant was
proper and reasonable and that its action was not arbitrary, capricious or
excessive.
A W A R D
Claim denied.
Nancy J D r - Executive Secretary
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago; Illinois, this 18th day of July 1990.