C:\MYDOCU~1\SCHEDU~2\3-29426.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29426
THIRD DIVISION Docket No. MW-29857
92-3-91-3-224
The Third Division consisted of the regular members and in
addition Referee Thomas J. DiLauro when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

(CSX Transportation, Inc.

(The Chesapeake and Ohio Railway Company)

STATEMENT OF CLAM: "Claim of the System Committee of the Brotherhood that:

(1) The withholdi-.5 ,f Mr. M. .A. Wagner from service for alleged medical disquaiiiicatton, h==inning July 23, 1990, was improper and in violation of the 4~reemenc ,S
(2) The Claimant shall be restored to service with seniority and all other rights un:moaired, he shall be compensated at his pro rata rate of pay for all wage loss sdffereu beginning July 23, 1990 and continuing until he is returned to service."

FINDINGS:

The Third Division of the Adjustment Board upon the whole record and all the evidence, finds =hat:

The carrier or carriers and the employe or employes involved in this dispute are respe:tivelv carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division -)f the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

Upon his recall to Carrier's service from furlough, the Claimant underwent a physical examination, which included giving a urine specimen. His urine specimen was rejected -_Y the laboratory. On July 31, 1990, the Claimant presented the Carrier's physician with another urine specimen.

On August 15, 1990, =he Claimant received a letter, dated August 7, 1990, from the Carrier's Associate Chief Medical Officer informing the Claimant that his failure to medically unqualified for service. The Claimant received a second letter, dated August 15, 1990, .`rom the Carrier's Associate Chief Medical Officer, informing him that he was -eiically unqualified for service due to the finding of cannabinoids (-aetaboLites Df marijuana) in his urine. The Claimant was instructed to contact a counselor in the Carrier's Employee Assistance Program. The Claimant protesc Form 1 Award No. 29426 Page 2 Docket No. MW-29857 92-3-91-3-225 The August 1, 1988 Implementing Agreement, applicable here, contains provisions reading:

"11. (a) Any employee tested under the provisions of this agreement and found to be positive for rugs .ind/or alcohol in accordance with Section 4(a) and Seztion 7 hereof, except as provided in Subsection 4(b), will be medically dis;uallfied by the CSXT's Chief 'Medical Officer in writing, and will be required to participate in the Employee Assistance Program (EAP) for evaluation and successfully complete the prescribed treatment program prior to being reL~rned to ser ;ervLce will also be predicated upon the passing of a re-examination by the ?Medical Department, ahicn will include alcohol and/or crug screens. (This procedure is explained in hppendix B)."

Step 5 of Appendix B of the ^arties' Agreement reads:

"Step 5 Employee _s evaluated by the Employee assistance ?rogram counselor, and the results of this evaluation are ~?nt to the -hief °4edical Officer. If found to be non-dependent, the Medical Department will Schedule -he physical examination after receiving the proper documentation from the counselor. Should the employee be in need of treatment, the counselor will develop a Treatment Plan for the employee and forward a copy to the Chief Medical Officer for placement in the employee's medical record."

Although the Claimant reported to the Carrier's UP counselor, the record contains no evidence that the Claimant received an evaluation by a Carrier's Employee Assistance Program counselor or that the Claimant was found to be dependent. Based on the record before us, the Board concludes that the Claimant should be returned to service with seniority and all other rights unimpaired, but without any pay for time lost while out of service, provided that, within thirty days of the i)rder date of this Award he satisfactorily passes an examination by the Carrier' Form 1 Award No. 29426 Page 3 Docket No. MW-29857 92-3-91-3-224

A W A R D

Claim sustained in accordance with the Findings. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: ~ra-ncy J. _1 a -Recutive Secretary Dated at Chicago, ;:Li:~uis, _-._s =1st day of October 1992.