Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44826 Docket No. SG-46631
23-3-NRAB-00003-210400
The Third Division consisted of the regular members and in addition Referee Michael D. Phillips when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(CSX TRANSPORTATION, INC. STATEMENT OF CLAIM:
“Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the CSX Transportation (formerly Louisville & Nashville):
Claim on behalf of D.E. Cross, for compensation for all lost time, including overtime and with benefits unimpaired between October 24, 2019 and December 2, 2019, account Carrier violated the current Signalmen’s Agreement, particularly CSXT Labor Agreement No. 15- 018-16, Consolidation of Agreements Uniform Rule 5 and L&N Rule 10, when, on October 17, 2019, it improperly withheld Claimant from service. Carrier’s File No. 20-67110. General Chairman’s File No. 19- 25-04. BRS File Case No. 16367-L&N. NMB Code No. 5.”
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.
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On September 21, 2019, Claimant D. E. Cross tested positive for marijuana on an FRA random test. As a result, the Claimant was required to be assessed by a Substance Abuse Professional (SAP), which was scheduled for October 8, 2019. After the Carrier’s Employee Assistance Program (EAP) received the SAP report, a return to work exam was performed, and the Claimant was cleared to return to work by EAP on November 30, 2019. This case involves the period between the date the Organization alleges the Claimant should have been cleared to return to service, October 24, 2019, and when he was actually allowed to return to service, and whether the Carrier improperly delayed the Claimant’s return to service.
The Organization submitted the instant claim on December 19, 2019, contending that the Carrier violated Uniform Rule 5 of CSXT Agreement 15-018-16, and L&N Rule 10. It contended that return to work documents were provided to the Carrier on October 17, 2019, and that there was no reason for the 42-day delay by the Carrier in returning the Claimant to service on December 2, 2019. The claim sought compensation for lost wages incurred after October 24, 2019.
The Carrier denied the claim, stating that the Organization had not provided any detail as to how the Carrier allegedly violated the cited rules or how the Claimant was entitled to pay for a period in which he had been held out of service by the medical department and EAP. It set forth a timeline of when the Claimant was cleared by EAP and a return to work exam was ordered (November 15), when the return to work exam was reviewed and the Claimant was notified to contact his supervisor (November 27), when the Claimant was notified by EAP that he was cleared to return to work (November 30), and when the Claimant reported to service (December 2). It asserted that the Claimant was not qualified to work any sooner due to those events.
The Organization submitted an appeal, again arguing that return to work documents were submitted by the SAP on October 17, 2019, and that the Claimant’s medical condition was not questioned after that. It cited an email from the SAP to the Claimant, which stated that the SAP had attempted to submit the forms on October 14, and that he again sent them on October 17 by fax and U.S. mail. The Organization contended that after the initial documentation was sent to the Carrier, the Carrier did not request additional documentation regarding the Claimant’s ability to return to work, and it cited arbitration awards for the principle that a carrier is responsible for unwanted and undue delay in ascertaining an employee’s fitness for duty. Allowing for five days plus three days for mail delivery, the Organization calculated that the process should have been completed by October 24, 2019, and it requested that the
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Claimant be paid for lost work opportunity from that date until the day he returned to service.
The Carrier denied the appeal, again maintaining that no violation of the cited agreements had been established. It set forth a more detailed chronology of events between the Claimant’s testing positive for a prohibited substance and his reinstatement, which included additional dates pertaining to the provision of necessary documentation from the SAP, which stated that SAPII documentation was not received until November 14, 2019. It added that the Claimant was cleared by EAP on November 15, and that a return to work exam was ordered, which included a breath alcohol collection and an observed urine sample submission. The Carrier stated that the results of the exam were reviewed by the medical department on November 27, which resulted in his medical clearance and notification thereof and instructed to contact his supervisor by an automated calling system. The Claimant was cleared by EAP on November 30, 2019.
The Carrier denied that the evidence showed it had been provided necessary documentation any earlier. It noted that the SAP stated he had an incorrect fax number when he first attempted to send the evaluation, and that he did not provide a date of when he later mailed the documentation to EAP. The Carrier noted that the timeline provided by EAP indicated the necessary documents were not recorded until November 14 and reviewed by EAP on November 15, the same day the return to duty exam was ordered. It denied that there was any evidence of delay in the conduct of the exam and urinalysis after the necessary documentation was received.
The parties discussed the matter in conference, which the Carrier documented in additional correspondence, attaching information from a nurse case analyst as confirming the time frames for the return to work process involving clearance by EAP. The matter now comes to us for resolution.
The parties’ positions before us are essentially the same as those set forth in the on-property handling described above. The Organization maintains its stance that the Carrier violated the agreement by denying the Claimant’s rights when it withheld him from service for an excessive amount of time. It argues that EAP was aware of the SAP session scheduled for October 8, 2019, as indicated by an entry into the system that date. The Organization states that the Carrier itself has indicated that 15 days is acceptable for the return to work process, so that 46 days must be considered excessive and unreasonable, resulting in the Claimant’s lost wages.
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The Organization cites multiple awards which have addressed employees being withheld from service for medical evaluations, and it describes a guiding principle therein that a Carrier’s rights in that regard are not unfettered and that the Carrier cannot arbitrarily or unnecessarily prolong the evaluation process. It states that the Carrier bears the burden of making a review and determining and employee’s fitness to return to work within a reasonable period of time. The Organization contends that the Carrier in this instance failed to substantiate the need for the Claimant to be withheld from service for the period it did, and it urges that the claim be sustained.
The Carrier, on the other hand, maintains its position that no violation of the cited agreements has been established. It states that the Organization must present evidence to establish that an agreement violation occurred, but that none was offered in this case. It states that there is no evidence that the examinations and documentation were improperly required or that the Claimant’s return to service was unduly delayed. The Carrier reiterates its contention that the Claimant was not qualified to hold his position during the period in question due to his lack of medical and EAP clearance.
The Carrier asserts that it is well settled that it has the right to manage its workforce, including the right to require employees who fail FRA drug tests to go through EAP, work with an SAP, and have a clean follow up to be cleared to return to work. It states that the Claimant was medically disqualified for safety reasons after the positive test, and that the Claimant was properly removed from service and referred to EAP. It cites prior awards which have held that a Carrier has the right, duty, and responsibility to remove an employee from service if it believes the employee is a safety risk pending the results of evaluations. The Carrier states that it did not delay any evaluation here, and it concludes that there is no proof to establish an agreement violation, and that the claim therefore must be denied.
We have carefully reviewed the record, including the correspondence, attachments, and citations of authority, and we find that the Organization has not established the Claimant is entitled to the requested payment. As noted in NRAB 3rd Division Award No. 40839, what constitutes excessive delay depends on the facts and circumstances of each case. The time frame for an employee’s return to service in circumstances involving positive drug screens is unique to each person, and we find no specific requirement in that regard, or that the Carrier prolonged that period here.
We have also reviewed the arbitral authority submitted by the Organization, and we do not believe it requires a different conclusion. Those cases involve instances
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in which an employer’s asserted explanations for delay in returning an employee to service were not found to be substantiated. We do not believe those circumstances are present here. While there is some indication that the process which led to the Claimant’s ultimate return to service was drawn out to some extent in connection with the SAP submitting documentation to the Carrier, we are unable on this record to conclude that the Carrier was responsible for any inordinate delay. There also seems to be no question that the EAP clearance requirement was within the Carrier’s prerogative, and the allegations regarding the necessity of additional medical or EAP clearances are not sufficient in our view to establish that the requirements were inappropriate or that the Carrier improperly delayed the Claimant’s return to service. The information regarding when the SAP allegedly submitted documentation to EAP is simply too vague and unsubstantiated for us to conclude that the Carrier was dilatory in its handling of the Claimant’s return once the necessary documents were provided. In these circumstances, we cannot find a basis to award the requested payment.
Claim denied.
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 21st day of December 2022.