On March 8, 1991, the Carrier notified all Hours of Service employees of the implementation of a Random Drug Testing Program in compliance with Federal regulations. The program became effective on April 23, 1991.
The Claimant, an Assistant Signal Mechanic, was notified by radio communication on December 14, 1992 of his selection to be randomly tested under the Random Drug Testing Program. At the time, he was working in the Oneonta area on a production job which started at 6:00 A.M. Since he was in the field and not at the Oneonta shop which was set up for the testing, he had to return to the shop. A local company, EMSI was contracted to collect the specimens. The Claimant complied with the directive and provided a urine specimen.
Between December 14 and 29, 1992, the Claimant was notified by the Carrier's Medical Review officer that he tested positive for cannoboinoids. He was asked whether he had used marijuana and he responded that he had not used the drug for several years. He proffered that he had been using a hair-growth stimulator consisting of vitamins and herbs. He also responded in the negative when asked if he was undergoing chemotherapy treatments for cancer or glaucoma. At that point, he was advised it would be necessary to report to the Carrier that he had tested positive for a controlled substance.
By letter dated December 29, 1992, the Claimant was directed to attend a formal Investigation on January 2, 1993, to determine his responsibility in violating 49 CFR Part 219.101 - 102 and Rule G of the NORAC Operating Rules, which read as follows:
The Claimant admitted during his uncoerced testimony, that he used a prohibited substance two weeks prior to testing. That admission cannot be erased. Besides the Claimant's veracity is at best questionable. He denied the use of any drug initially and during his initial questioning during the Hearing. Eventually, he admitted to possibly using marijuana once approximately two weeks before the test. However, the Medical Review Officer while responding to the Organization's questions revealed that the metabolites from marijuana would not remain in the system of an occasional user for more than a week, but, in the case of a chronic user the metabolite could remain in the system for weeks. This would be sufficient evidence the Claimant used the drug more frequently than he admitted.
The Organization, as part of its defense of the Claimant, asks this Board to fault the Carrier for failing to educate the Claimant on FRA regulations and the Carrier's policies regarding drug testing. Contrary to the Organization's position, the Claimant was randomly tested for drugs seven months after his employment. It is unrealistic to believe he completed the process and remained ignorant of the Carrier's policies or the FRA regulations. However, it should be noted that if the organization is intent to offer such an affirmative defense, it must be kept in mind simply saying it does not make it so. When a party raises an affirmative defense, it has the burden of proving its charge. The claim not only lacked proof, but, the fact the employee was subject to at least one random drug test prior to the test at issue, serves to dispel the Organization's claim.
There were no mitigating circumstances under which this Claimant should be considered for reinstatement. He knew the rules relative to drug use and he was employed by the Carrier for less than two years at the time of his discharge.
By letter dated March 12, 1993, the organization appealed the actions of the Carrier. It contended the drug test was not random and the Claimant did not receive a fair and impartial trial. The appeal was denied by the Carrier, who iterated the sample collection was performed in accordance with FRA instructions as mandated in Part 49. It also asserted that the Claimant was aware of the drug policy since he was tested in October 1991 following his employment in April 1991. It further pointed out the fact the Claimant admitted using a banned substance during his testimony at the Hearing.
On June 25, 1993, the Organization rejected the Carrier's denial and indicated it would appeal the matter to this Board.
On July 12, 1993, the Carrier denied the organization's appeal of June 25, 1993 on the basis it was not in accordance with Article 12.13 of the current Agreement and was untimely. Therefore, any information contained within the June 25, 1993 letter was improperly submitted.
The organization argues that the Carrier violated the Agreement, especially Rule 12.1, when it failed to provide the Claimant with a fair and impartial Hearing and when it imposed an excessive penalty for the given infraction. In addition, the Carrier did not follow its established random drug testing procedures. It selected the employees to be tested by craft and location, rather than by computer generated employee identification numbers. The Organization raised this concern at the Investigation, and argued that the selection process was contrary to the FRA regulations. The organization further argued that errors were made during the collection process and the proper identification of the samples collected was at best questionable. It further denied the Claimant a fair and impartial trial by failing to allow witnesses to testify as to how the tests were conducted.
The Carrier maintains the Claimant was aware of the Random Drug Testing Policy, especially in light of the fact he was tested in October 1991, seven months after his initial hire date. It is the Carrier's position the employees tested were selected according to FRA regulations. It further argues that the drug test itself was properly conducted and the integrity of the samples was preserved. Besides the Claimant himself testified during the Investigation that ha had used a banned substance as recently as two weeks prior to the random testing. Form 1 Award No. 30895
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.