Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No.
32178
Docket No.
MS-32227
97-3-95-3-39
The Third Division consisted of the regular members and in addition Referee
James E. Yost when award was rendered.
(Joseph V. Little
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM:
"Whether or not machine operator Joseph V. Little,
5519
Auburn,
Avenue, Sciotoville, OH 45662, was properly dismissed from service on
September 7, 1993 for failure to keep his system free of prohibited drugs
in accordance with the instructions of the carrier's medical director G. W.
Ford, M.D. and company policy as stated in Dr. Ford's letters dated, April
7, 1988 and October 13, 1988 inasmuch as neither letter was ever received
by Mr. Little, in violation of the carrier's own policy and rendering the
attempted notification null and void. As a result, Joseph V. Little requests
reinstatement with back pay for all lost time and all rights unimpaired."
FINDINGS:
The Third 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.
Parties to said dispute were given due notice
of
hearing thereon.
Form 1 Award No. 32178
Page 2 Docket No. MS-32227
97-3-95-3-39
The Petitioner requested a Referee Hearing before the Board. Although due
notice of the date, time and place of Hearing was given, the Petitioner failed to appear
for the Hearing.
The Petitioner entered the service of the Carrier as an Extra Force Laborer on
October 5, 1981.
On March 31, 1988, the Petitioner tested positive for marijuana on the drug
screen included as a part of his return-to-work physical examination. The Carrier's
Medical Director advised the Petitioner by letter dated April 7, 1988, of the positive
drug screen, and notified him that he was being withheld from service pending his
furnishing a negative drug test.
The Petitioner furnished a negative drug specimen on April 9 and was qualified
by the Medical Director on April 13 to return to service. Subsequent to his return to
service, the Carrier's Medical Director addressed a certified letter dated October 13,
1988 to the Petitioner reading:
"Dear Mr. Little:
Your drug screen urinalysis conducted as part of your physical
examination was positive for marijuana.
You gave another urine sample for drug screening. This sample tested
negative and you were returned to service. I remind you, however, that
the use
of
prohibited drugs is contrary to company policy. You are
therefore instructed to keep your system free
of
such substances.
During the first three years following your return to work, you may, from
time to time, be required by me to report to a medical facility for further
testing in order to demonstrate that you are no longer using marijuana or
other prohibited drugs. Should a further test be positive. you will be
subject to dismissal." (Emphasis added)
The Petitioner was working as an Assistant Crane Operator on a burro crane on
June 15, 1993 when he sustained a personal Injury requiring seven stitches to his scalp.
Form 1 Award No. 32178
Page 3 Docket No. MS-32227
97-3-95-3-39
As a result of the injury, he was required to take a drug screen which tested positive for
marijuana.
Under date of July 2, 1993 the Carrier issued a Notice
of
Investigation to the
Petitioner reading:
"Dear Mr. Little:
You are hereby notified to report to the former Office
of
the Division
Engineer, 1025 16th Street, Portsmouth, Ohio, 1:00 P.M., Wednesday,
July 14, 1993 for a formal investigation to determine your responsibility
in connection with your failure to comply with the instructions
of
the
Carrier's Medical Director, G. W. Ford, M.D., and Company Policy as
stated in his letter dated October 13, 1988, copy attached, addressed to
you, in that you did not keep your system free
of
prohibited drugs in
accordance with these instructions.
If you desire to have witnesses and/or representatives present at this
formal investigation, please make arrangements for their presence.
Be advised this investigation has been rescheduled for Friday, August 13,
1993, same time and location."
At the request of the Organization, the Investigation was rescheduled to Monday,
August 30, 1993.
Following the close of the Investigation, the Carrier notified the Petitioner that
he was dismissed from all service account failure to keep "your system free of prohibited
drugs" in accordance with instructions
of
its Medical Director and Company policy as
stated in the Medical Director's letter
of
October 13, 1988.
Pursuant to study of the Investigation transcript, the Board concludes that the
Carrier substantiated with substantial evidence the Petitioner's responsibility for his
failure to comply with instructions to keep his system free
of
prohibited drugs as shown
by the following discussion.
Form 1 Award No. 32178
Page 4 Docket No. MS-32227
97-3-95-3-39
The Carrier's policy on drugs is set forth in its Safety and General Conduct Rules
Book distributed to all employees, and contains the following:
"The employee will be instructed by the Medical Director to keep his or
her system free of such drugs. That employee will be subject to dismissal
if any future test is positive. An employee returned to service in this
manner may be required by the Medical Department during the 5-year
period following the date of his or her return to service to report to a
medical facility for further testing to determine whether he or she is using
drugs.
NOTE: Employees who tested positive under a previous version of
this policy who were returned to service following a negative
test and instructed to keep their system free of prohibited
drugs wW be subject to dismissal if any future test is
positive."
In the Investigation transcript, we find that the Petitioner testified:
"39. Q. Mr. Little have you ever been tested positive prior to June
15th of 93, positive for prohibited drugs?
A. According to that letter, yeah I have.
40. Q. Mr. Little, are you aware of the current Company or Book
of Rules and Safety Rules concerning the use of prohibited
drugs?
A. Yes sir, I am aware
of
the rule.
~r~r
42. Q. Mr. Little, were you ever or have you been aware
of
or been
notified previously that had you ever give another positive
sample or positive drug screen for prohibited drugs that you
would be dismissed from railroad service?
Form 1 Award No.
32178
Page
5
Docket No.
MS-32227
97-3-95-3-39
A. According to the letter that was attached with the
6-23-93
letter thats what I received yes sir it is.
43. Q. So you were aware that those instructions existed to you?
A. Yes sir, I was."
The Petitioner clearly acknowledged that he was aware
of
the Rules prohibiting
the use
of
drugs, and that
if
he tested positive a second time he would be dismissed from
Carrier's service. He also freely acknowledged that the instruction applied to him.
Moreover, it is to be noted that the Petitioner did not deny receipt
of
the Medical
Director's letter
of
October
13,
1988 the instructing him that should a further test be
positive, he would be subject to dismissal. The Petitioner merely stated "I don't
recollect."
All evidence points to the undeniable fact that the Petitioner was well aware that
he would be subject to dismissal
if
he failed to keep his system free
of
prohibited drugs.
Insofar as the Petitioner's statement that he never received the Medical
Director's April
7,
1988 letter
of
instructions, the record reveals that it was addressed
to the exact same address as the letter dated July
2,
1993 notifying him
of
the formal
Investigation to be held to determine his responsibility in connection with his failure to
comply with instructions
of
the Medical Director, which he did acknowledge receiving.
The record also reveals that the envelope in which the April 7, 1988 letter was sent to
the Petitioner was returned to the Carrier by the Post Office stamped "undeliverable -
refused." This indicates the reason he never received it is that he refused to accept his
certified mail.
The Carrier cannot be held responsible for the Petitioner's refusal to accept the
certified letter
of
April 7, 1988, and the Petitioner cannot expect to escape dismissal by
hiding under the excuse he did not receive the Medical Director's instructions
of
April
7, 1988.
This Board finds no justification for disturbing the discipline
of
dismissal from
service assessed by the Carrier.
Form 1 Award No.
32178
Page 6 Docket No.
MS-32227
97-3-95-3-39
The Carrier, in its Submission to the Board, presented a procedural question, but
in view of our findings set forth above, we see no necessity to rule on it.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 13th day
of
August 1997.