Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28398
THIRD DIVISION Docket No. MW-27778
90-3-87-3-277
The Third Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) Claimant P. E. Main shall be compensated for all wage loss
suffered by him as a result of being improperly withheld from service because
of physical examination administered on March 18, 1986 (System File C-TC-3220/
MG-5678)."
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 were given due notice of hearing thereon.
Claimant herein had been on furlough; he was instructed to report for
a return to work physical examination on February 17, 1986. Following that
medical examination he was found to test positive for drugs, namely marijuana.
Claimant was retested on March 18, 1986, and again the test revealed that cannabinoids were present
notified by Carrier that it would be necessary for him to be cleared through
Carrier's Employee Assistance Program prior to returning to work. By letter
dated March 24, 1986, Claimant notified Carrier that he had submitted to a
drug test at a local hospital and had been found free of any drugs (test date
March 17, 1986). A repeat test was administered by Carrier on May 6 and thereafter Claimant was qual
alleging that Claimant was improperly withheld from service on and after March
18, 1986.
Form 1 Award No. 28398
Page 2 Docket No. MW-27778
90-3-87-3-277
The Organization argues that the policy promulgated by Carrier with
respect to drugs is premised on the assumption that a reliable and reputable
laboratory is used. It is asserted that in this instance no such facility was
used. In support of its position the Organization presented a number of articles indicating that a n
meet minimum performance standards. In this dispute, it is argued that Carrier failed to provide any
The Carrier argues that there has been no showing that the results of
Carrier's two tests were in any respect flawed. In addition it is maintained
that Carrier has the right to establish medical standards and in this instance
those standards were appropriately applied. The simple facts were that Claimant was found to have us
consistently with other employees under Carrier's medical policy.
The Board finds that there has been no showing whatever that the
testing procedure employed by Carrier in this instance was flawed in any
respect. Mere allegations are insufficient and there was no obligation by
Carrier to offer any detailed information with respect to the procedures
employed in the absence of specific questions. Concerning the submission of
the test result from the independent source employed by Claimant, this Board
is not empowered to overrule the decision of Carrier's medical staff with
respect to Claimant's fitness for service (see Second Division Award 5021).
In sum, the Board finds that the Organization did not meet its burden of proof
with respect to any impropriety on the part of Carrier. The Claim is lacking
in merit.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er -.Executive Secretary
Dated at Chicago, Illinois, this 25th day of May 1990.