The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
While working on his assigned task of "troubleshooting" a locomotive, the Claimant. a Journeyman Electrician, became seriously ill, left his work station, sought assistance at the Planner Office, and was taken by ambulance to a hospital for treatment. :1s far as can be determined from the record. the cause of his distress was the use of a special cleaning fluid: while there may be some possible doubt as to the certainty of this cause. such does not require determination by the Board.
Because the cause of the Claimant's condition was undetermined at the time. the Supervisor accompanying the Claimant to the hospital was instructed to have the Claimant subject to a toxicological test by urinalysis. It is the Carrier's contention that the Claimant refused to undergo the test. On this basis. the Claimant was subject to an investigative Hearing under the following charge:
The Claimant was further charged with possible violation of Safety and General Rule 1007, which reads in part:
In support of this contention, the Carrier did not provide any specific reference to a written "policy", much less the policy itself, either at the investigative Hearing or for the Board's review. The Board, nevertheless, need not question that in the circumstances here under review, because a "probable cause" urinalysis initially may have appeared to be warranted. .1t the time of the incident. Carrier supervision had no clear explanation for the Claimant's condition, and the decision to require a drug/alcohol test was arguably justified.
The Board further has no difficulty following along line of Awards in which an employee's refusal to take such a test may he determined to be insubordination.
The investigative Hearing was held nine days after the incident. Its purpose was not simply to confirm the Claimant's refusal. thus supporting a charge of insubordination and his consequent dismissal from service. Rather. the purpose of the Investigation, as stated by the Carrier itself, was to "develop facts and responsibility."
Following the Hearing, the Director. Mechanical Operations concluded the Claimant was in violation of Rule 1007, and the Claimant was dismissed from service. Form 1 Award No. 13288
The Board finds this conclusion with little or no support from the Hearing record. Among the reasons the Board so determines are the following:
1. There was considerable discussion concerning a "form" and whether it required the Claimant's signature. The "form" in question was merely a request and authorization by the Carrier to the hospital to perform a drug/alcohol test. This clearly misses the point. Any standard toxicological test by urinalysis must involve the employee's participation, including witnessing of the handling of the urine, a signature verifying the sealing of the sample, etc. There is no evidence that the Claimant was advised of this procedure or even given the opportunity to participate.
2. Whatever the cause of the Claimant's temporary impairment. the record makes it obvious that he may not have sufficiently recovered to understand the procedure.
3. The record leaves considerable uncertainty as to whether the Claimant was flatly refusing to take a urinalysis or simply, in his possible confusion, asking to read and sign a consent form.
3. On the following day, the Claimant, now sufficiently or fully recovered. spoke with the Director, Mechanical Operations and offered to take a drug/alcohol test immediately. This opportunity was refused. The Board is fully aware of the purpose of testing at the time directed, since with any delay positive showing of drut, or alcohol use may no longer he found. Nevertheless, given the Claimant's serious condition while being treated in the hospital. the Carrier's refusal to test the Claimant within 16 hours of the incident must be considered inappropriate.
-t. Was there "probable cause" to believe the Claimant was under the influence of alcohol or drugs? Perhaps there was, at the time of the incident. Testimony of the Carrier's own witness, however, offers convincing evidence to the contrary. There follows an interchange between the Hearing Officer and the Diesel House Foreman who accompanied the Claimant to the hospital and who was trained in drug identification:
Further, as argued by the Organization, the Board finds the Hearing was not conducted in a fair and unbiased manner. The Board recognizes that Hearing Officers are not experts in legal niceties, given that their principal occupation, as here, is entirely unrelated to conducting hearings. However, in this instance, the preconception of the Claimant's guilt is obvious. The portion quoted above is an example. Others are the unnecessary defense of Carrier officials' actions at the time of the incident (Record, pp. 38-9); his unwarranted attempt to read, erroneously, a "positive" finding in the drug/alcohol test taken by the Claimant on his own initiative (Record. pp. 46-7); and the following exchange which appears to be seeking a stronger response from a subordinate official:
The Board specifically does not intend to suggest any general limitation on the Carrier's right to require testing for "probable cause" or the Le~neral principle that refusal to be tested is insubordination. The Hearing testimony in this case. however, suggests, or demands, that the Carrier should have realized that exceptional. possibly unique. circumstances required a different conclusion.
While the Award sustains the claim. the Board notes that the Claimant was reinstated by Carrier action after nine months. For the nine-month period, the remedy is properly limited to that provided in Rule 32(f). Form 1 Award No. 13288
This Board, after consideration of the dispute identified above. hereby orders that an award favorable to the Claimantls) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.