Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28117
THIRD DIVISION Docket No. MW-27667
89-3-87-3-123
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Kansas City Southern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) Laborer H. Douglas shall be returned to his position as laborer
and he shall be compensated for all compensation loss suffered by him as a
result of being improperly withheld from service beginning July 29, 1985
(Carrier's File 013.31-338)."
FINDINGS:
The Third 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.
In July, 1985, Claimant, who had been furloughed on February 15,
1985, reported for a physical examination required of all returning employees
who had been out of service for more than ninety days. The examination includes a drug screen. On Ju
failure of the test we note the claiming letter of September 14, 1985, stated:
"After this screen had been performed, Mr.
Douglas was contacted and told that there was
Marijuana in his sample."
A second test performed July 19, 1985, revealed the presence of
Ethanol (Alcohol) and so did a third test on July 26; a fourth test on August
12 proved positive for marijuana as did a fifth test on November 19, 1985. On
September 23, 1986, Claimant was given a sixth test. It was negative and he
subsequently returned to work.
Form 1 Award No. 28117
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On July 27 and November 20, 1985, Claimant underwent a drug screen
through his personal physician. Both were negative for marijuana but no test
for alcohol was made.
The organization submitted numerous articles from scholarly Journals
and other authoritative sources as well as depositions from experts dealing
with error rates and probabilities in drug screening, possibilities of lack of
care in the chain of custody of samples and related problems presented by drug
screens. However these materials were not presented, nor were these arguments
raised, on the property except to the extent that the results of the tests
arranged through the private physician could be viewed as a challenge to
Carrier's tests. It is noted, however, the private screens were restricted to
testing for marijuana whereas Carrier's July, 1985, tests revealed the
presence of Ethanol.
In addition to its arguments about error rates and specimen control
the Organization contends documented results of Carrier's tests were not
produced on the property and asserts there is no evidence the tests are
"capable of correlating physiological and/or psychological effects of marijuana with levels of urina
are raised for the first time before this Board. As was stated in Third
Division Award 27081:
"This Division has reviewed the entire record of
this case, including all relevant documents
exchanged on the property, and finds that the
Organization's questioning of the validity of
the testing procedures did not, for the most
part, arise until the Organization presented
its Submission to this Division . . . . It is
a well accepted precept within the railroad
industry that matters not addressed during the
on-property development of a claim are not
admissible before the National Railroad Adjustment Board. We so hold here."
This language describes, and is dispositive of, this case.
A W A R D
Claim denied.
Form 1 Award No. 28117
Page 3 Docket No. MW-27667
89-3-87-3-123
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. r -.Executive Secretary
Dated at Chicago, Illinois, this 25th day of September 25, 1989.