try to provide a second urine specimen. The record as presented to the Board therefore precludes a finding that the Claimant had acted improperly. Thus, the reliance by the Carrier on the written statement from the nurse failed to meet the Carrier's burden of proof to provide sufficient probative and persuasive evidence to sustain the termination of the Claimant under these highly unusual circumstances.
With respect to a remedy, the record substantiates that the Claimant had an obligation to provide a valid urinalysis sample to qualify to return to work. For whatever reason, the Claimant failed to do so. As a consequence, no evidence exists in the record that the Claimant had qualified to return to work. The Claimant therefore lacks a right to any monetary remedy. The Claimant, however, shall be afforded another opportunity to qualify to return to work by submitting a valid urinalysis sample as part of the return-to-work physical requirements of the Carrier.
Any other arguments raised by the parties lack relevance due to the unusual facts set forth in the record.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD 35726. DOCKET MW-34901
(Referee Douglas)
The rather unique circumstances surrounding this particular dispute were adequately set forth within the body of this award and it would serve no purpose to regurgitate them here. In this case, the Board determined that the claim should be sustained; however, it did not award back pay to the Claimant. Since the award was sustained in part, the small concurrence required is only to the extent that the Claimant was finally reinstated. However, the Organization is compelled t dissent to the Board's determination that the Claimant was not entitled to any back pay.
The Board recognized that the crux of this dispute was the issue of whether the Claimant attempted to avoid providing a valid urine sample at his return-to-work physical. This record reveals that on April 27, 1997, the Claimant provided a urine sample at 5:00 P.M. and the nurse at the collection site placed the sample near an air conditioner for approximately five (5) minutes. Then, after that period of time, she tested the temperature of the sample and decreed it to be invalid because it was too cold. She then requested another urine sample from the Claimant. Obviously, after a person has voided his bladder, a period of time is required before another sample could be given. The Claimant began drinking fluids and by 6:00 P.M. he was unable to produce another sample before the clinic closed for the day. The Board recognized that the Claimant in no way "hindered, sabotaged or undermined the collection process" and found that no evidence was Labor Member's Concurrence and Dissent
produced to show that the Claimant acted improperly. On that basis, the claim should have been fully sustained and the Claimant awarded back pay for the period of time he was improperly withheld from service by the Carrier.
Incredibly, the Board held that since the Claimant failed to provide a valid urinalysis, he was not qualified to return to work and denied him back pay. This Claimant had rendered more than twenty-one (21) years of unblemished service for the Carrier. Because of the Carrier's recalcitrant and heavy-handed actions, this Claimant has lost out on more than four and one-half (4.5) years of wages and benefits. We submit that the Board's failure to award monetary reparations in this instance represents a miscarriage of justice. Failure to award back pay in this instance does nothin but reward the Carrier for its mishandling of this case. Under the circumstances, it is simply unconscionable that the Claimant should be made to suffer monetarily because of the Carrier's mishandling of this claim. For the above reasons, I vehemently dissent to the remedy portion of this Award.
Carrier Members' Dissent
and
Response to Labor Member's Concurrence and Dissent
to Award 35726 (Docket MW-34901)
(Referee Douglas)
The main difficulty with this decision is that it has made a late allegation by the Organization into a fact of record and then used said "fact" to absolve Claimant of impropriety. At page 2 of the Award we find the following:
This assertion was first raised by the Organization during the second level discussion of this matter on August 18, 1997 - approximately 4 months after the April 25, testing. It was NOT raised in the Investigation held on July 11, 1997.
In responding to this assertion, the Carrier advised the Organization in its September 2, 1997 letter:
Nothing was ever produced in the subsequent on-property handling that would have changed the Carrier's factual conclusion. There is no evidence at all that Claimant's sample was mishandled. There is no evidence of the existence of an air conditioner nor is there any evidence that air conditioning was even needed or turned on on April 25, 1997 at Tonawonda, N.Y. This "fact" is nothing but a hoax perpetrated by the Organization and swallowed by the Majority.
Second, given the asserted difficulty Claimant Burgin had in providing the initial sample, one would have expected that he would have questioned the need for a second sample at all. Yet, he voiced no concern or objection to the conclusion that his sample was cold. Claimant was not new to drug testing. When told that his sample was "not in compliance" there is nothing to indicate that Claimant was surprised.
Next, it is clear and not disputed that Claimant was instructed to give a second sample and that he left the facility without doing so. Claimant was charged with his, "...failure to comply with... Medical Policy... when you failed to provide a valid urinalysis sample...:' Such insubordination has long been held to warrant dismissal;
see PLB 4877 Award 1, PLB 3755 Award 26, SBA 1022 Award 82, SBA 909 Award 93, SBA 910 Awards 300, 358, 529, PLB 4410 Awards 93, 96, 206, SBA 984 Award 1188, PLB 3514 Award 359, all on this property.
Despite all of the foregoing, the Majority contends that "critical evidence" was missing and concludes at page 3 that there is no evidence, "...that the Claimant has acted improperly."
Providing other than a valid sample and refusing to comply with specific instructions to remain to give a valid sample warrants the discipline assessed. Organization's Concurrence and Dissent relies on the same phantom fact to support its notation that Claimant did nothing improper, simply compounds the error of this decision.
One can only hope that the benefice bestowed on Claimant in this Award is taken as a second chance to correct his errant ways.