Following an Investigation that was held on March 2, 1994, the Claimant, who was employed by the Carrier as a Trackman was "dismissed in all capacities" for violation of the following Rules: Rule A - "Obeying the Rules of Conduct"; Rule G - "Alcohol and Drugs", which, in relevant part, provides that employees, while on duty, are prohibited from . . . using or being under the influence of... narcotics or other mood changing substances"; Rule D - "Company Policies and Procedures; and Rule P - "Outside Activities", which provides that employees are prohibited from engaging "in any activity which interferes with their efficiency on or availability for duty or creates a conflict of interest."
The Claimant's dismissal resulted from a "follow up/quarterly" test for drugs on January 10, 1994. The follow up test took place pursuant to a Rule G Waiver Agreement that was signed by the Claimant on November 19, 1993. Under the Agreement, in relevant part the Claimant agreed to submit to, and passing "a drug and/or alcohol test . . . at least four times a year for the first two years of active service, following [his[ return to duty." The Claimant further agreed that should he "test positive in any future drug/alcohol test . . . [he[ will be dismissed from . . . service."
The Carrier's Nurse J. Teixeira set forth the procedures involved in the initial collection process of the sample taken on January 10, 1994. He labeled and sealed the Claimant's sample. Teixeira then initialed the security seal after which he placed a numbered tag from the chain of custody form on the bottle. A copy of the chain of custody form, that was signed by the Claimant, was placed in the sealed sample in a box which was then sealed and taken to Federal Express for shipping.
The handling of the Claimant's sample was well documented. It shows the measures taken by American Medical Laboratories, Inc. (AML) to ensure that the equipment used to test the Claimant's sample was properly calibrated. A letter from AML's Director of Forensic Toxicology, Dr. Constantino, attests that he reviewed the accompanying documentation and found ". . . all reports, chain of custody and QC records were in order. The paper work indicates that our laboratory procedures were accurately followed in the handling and testing of this sample, and that the results obtained are similarly accurate." The "litigation package" from AML provides the documentation which supports Dr. Constantino's statement. Form 1 Award No. 32427
Teixeira provided testimony explaining the steps taken to ensure the accurate and secure testing of the Claimant's sample. The documentation which is part of the record shows that the sealed sample was received by (AML) which assigned it accession number 20670443. The Claimant's sample was slotted in position 5 of batch 6838.
The handling of aliquots taken from the samples shows that the Claimant's sample tested positive for cocaine metabolites on January 11, 1994. Another aliquot of the Claimant's sample was taken and transferred for confirmation some 30 minutes later than the testing of the initial aliquot on the same date.
The group of samples was transferred from temporary storage to the GCMS extraction area. The handling of the samples is documented from extraction to the completion of the confirmation process. The confirmation testing found a concentration of 410 ng/ml of benzoylecgonine, a cocaine metabolite. These tests provide substantial evidence in support of the Carrier's charges against the Claimant.
The Organization's argument that the Carrier's Drug Policy for Testing of Employees is unreasonable was repudiated in Public Law Board No. 5139, Award 14 in which it was stated:
1994 which was negative. The collection of the Claimant's sample was performed on January 10, 1994.
In our judgment, METPATH's test results cannot be considered probative evidence that the Claimant did not have benzoylecgonine in his system on January 10, 1994. As noted in the record, this substance is usually detectable for one to four days after the use of cocaine. Assuming that the Claimant provided the sample to METPATH, he could have fully excreted this substance in the three days before the sample was provided to METPATIL
Moreover, there is no assurance that the sample provided to METPATH was given by the Claimant. There is also no assurance that there was no tampering with the sample that was provided to METPATH.
The Organization's documentation states that the creatine concentration was below 20 ng/ml. This low concentration is to be contrasted with the Claimant's January 10, 1994 sample which was 113 ng/mi, roughly five times the concentration of the January 13, 1994 sample. The creatinine level provides a measure of the relative dilution of an individual's urine. The extraordinary degree of dilution of the Claimant's urine in three days leads this Board to believe that the negative result of the January 13 drug screen is unreliable in determining whether there was cocaine in his system on January 10, 1994.
On November 19, 1993, the Claimant agreed that if he tested positive in any future drug/alcohol test during "the first two years of active service following [hill return to duty", he would be dismissed from service. The Board cannot ignore this selfexecuting lang Law Board No. 5341, Award 1: