Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45451 Docket No. SG-48368
25-3-NRAB-00003-240098
The Third Division consisted of the regular members and in addition Referee Bill Bohne Jr. when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Northeast Illinois Regional Commuter Railroad Corporation (NIRCRC) d/b/a METRA
“Claim on behalf of R.J. Lane, for reinstatement to his former position with all seniority and benefits unimpaired, compensation for all lost wages, including overtime, and any mention of this matter removed from his personal record; account Carrier violated the current Signalmen's Agreement, particularly Rule 54, when it issued the harsh and excessive discipline of dismissal to the Claimant, without providing him a fair and impartial investigation and without meeting its burden of proving the charges in connection with an Investigation held on April 22, 2022. Carrier’s File No. 11-2023-2, General Chairman’s File No. 07-D-22, BRS File Case No. 6419, NMB Code No. 102 - Out-of-Service Discipline: Drugs & Alcohol.”
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.
By notice dated May 6, 2021, the Claimant was ordered to attend an investigation scheduled for May 12, 2021, in reference to the following:
“The purpose of this investigation is to develop the facts, determine the cause and assess responsibility, if any, in connection with an alleged violation of Metra’s Drug and Alcohol Policy when you allegedly refused to take a Non-DOT Return to Work Drug Screen test administered on Tuesday, May 4, 2021. In connection therewith, you are charged with the alleged violation of the following rules:
Metra Code of Conduct Rule “G.”
Following mutually agreed-upon postponements, the investigation was finally held on April 22, 2022. By letter dated April 29, 2022, the Carrier notified the Claimant that he had been found guilty of the charges preferred against him and issued him the ultimate penalty for such a case, dismissal in all capacities.
The Organization filed a timely appeal of this guilty verdict and the dismissal. The Claim was progressed and discussed on the property without objections, and also without being able to reach a satisfactory resolution. The Organization subsequently filed this case for arbitration, and we find ourselves at this point today.
The Organization argues that the Claimant, prior to this incident, had been experiencing some issues in his life outside of work, including domestic issues and continued issues with substance abuse, which he claimed he attempted to rectify first through Carrier’s Employee Assistance Program (EAP), but to no avail. They then claim that he sought help for his issues on his own, separate and apart from the Carrier’s EAP program. Furthermore, they claim that he did follow instructions from the Carrier and did submit to a urine test and never left the testing facility after being instructed not to. The Claimant did admit to stepping outside of the facility to get water from his car and to smoke a cigarette, claiming he returned in approximately 5 minutes. He further claims that he was not permitted to re-enter the facility. Unfortunately, or maybe conveniently, he cannot remember who he spoke to at the door. And finally, they claim that under the Carrier’s policy and Rule G Employee Assistance Program, he should be able to enter the Program and be reinstated, especially in light of the fact that he “never got a direct order from NIRCRC supervision to not leave the drug test facility.”
Carrier, on the other hand, asserts that the Claimant was in violation of Rule G by refusing to submit to a required Drug and Alcohol test. The Claimant was sent to an off- site medical facility, called “Concentra,” that METRA contracts with to provide drug and alcohol testing. They state that initially the Claimant did provide a urine sample for said test but that the sample he provided was out of “temperature” range, between 90 to 100 degrees Fahrenheit. This “out of temperature” indication was discovered by a test strip used to determine the proper temperature range that turned black - indicating out of required temperature range. Since the urine was out of temperature range it was therefore considered invalid. In accordance with company policy, the Claimant was subsequently advised that, due to the temperature issue, he would have to provide another urine sample for testing. He was informed, in writing and acknowledged by his signature on the form, a Concentra “Unusual Collection Form,” that he could not leave the testing facility until the second sample was provided. He was also informed that facility personnel would provide him with all the drinking water he needed to assist with his urination. The form the Claimant signed states in pertinent part:
“I have been instructed not to leave the testing site during this period.
I understand that failure to follow the collectors’ instructions or failure to remain at the testing site until the testing process is complete will be considered a refusal (emphasis added).”
This Board has thoroughly reviewed the investigation transcript and all additional documentation relative to this case. First, we acknowledge that this entire process was fair and impartial, and the Claimant and his union representative were afforded every opportunity to call and question witnesses. Second, as to the Claimant’s argument that he was never given a direct order from NIRCRC supervision not to leave the drug test facility, we take exception to that. The Claimant was instructed to go to Concentra, the company the Carrier uses for their drug testing. Even though there were no METRA supervisors present at the facility, since he was ordered to go there by METRA supervision to take his drug test, he was then under the control of Concentra and required to obey their rules and instructions as if the orders were being given by a METRA supervisor. By contract, Concentra, with the consent of the Carrier, had the right to act at the facility on behalf of METRA. There is no disagreement as to what happened up until the time that he gave his first urine sample. However, it is in connection with the first urine sample being out of temperature and the Claimant being ordered to provide a second urine specimen where the dispute begins. The Claimant readily admitted that he left the Concentra Medical Facility after the first urine test was deemed unacceptable. He claims he only stepped outside the facility to grab a drink of
water and smoke a cigarette. He claimed he was only gone for five minutes, and when he returned he was not permitted to reenter the testing area. His testimony pertaining to this when being questions by Hearing Officer Danielle Gauthier went as follows:
“So I went out to the car to get a bottle of water, smoke a cigarette, come back in and that's when they told me I refused to test.
Q - So you left the facility before providing a second sample? A - Yes, ma'am.”
Contrary to his claim as to attempting the re-enter the facility after only being in the parking lot for 5 minutes, Ms. Josephine Aguado, a Concentra employee who administered the initial test, stated something completely different. In her written statement that was entered as evidence during the investigation, she stated she went to look for the Claimant in the waiting area and discovered that he had left the premises. Ms. Aguado stated that when she returned to the waiting room she did not see the Claimant in the waiting room area, nor did she see him try to reenter the facility. She went on to say that she questioned three other Concentra employees who were working there at the time, asked them each about the Claimant returning to the facility, and all stated that they didn’t see him try to reenter. The Claimant stated that he saw someone at the door when he went to reenter, but that he could not identify who the person was.
So now we have two different versions as to what transpired after the Claimant was advised that he’d have to give another urine sample. Obviously, the Hearing Officer, Carrier Lead Discipline Officer Danielle Gauthier, made a determination that Ms. Aguado and the other 3 Concentra employees were telling the truth about the Claimant not returning to the testing facility. Not that it matters, because he readily admitted that he had indeed left. And his lame excuse was that he needed to get a drink of water and also to catch a smoke. But this begs the question of why he left the facility. We can only speculate that he was attempting to avoid giving another urine sample, which he did avoid, but to his own peril. Instead of just leaving on his own accord, he could have, and should have, approached Ms. Aguado, or one of the other employees at the site, and asked for permission to leave to go out to his truck. Chances are they would have arranged for that, even with an escort, but for some reason he did not do that. He simply left.
There are a few other unanswered questions involving his actions on the day in question. During the investigation, the Organization made reference to some EAP self-
help that the Claimant claims he got. The claim was made that he had gotten help from an EAP program not associated with METRA. To the Claimant’s detriment, no documentation was produced at the investigation as proof of this. This Board also finds it a bit strange that Claimant, after failing the drug screen, didn’t immediately go to an outside doctor or medical facility and get tested again and provide a clean sample. This is the MO that many other accused drug use offenders have used in past cases that this Board is familiar with. This, we believe, is what most other employees would have done, especially those professing their innocence and who are legitimately clean. Of course, if he was “dirty” then of course he wouldn’t do this. We don’t know the answer as to why he didn’t do this. Maybe it never came to his mind, but one can only surmise what his reason for such could have been. And last, but not least, the Organization made a claim of disparate treatment, claiming that other employees in situations such as this were treated completely different, and were allowed to enter the Carrier’s EAP program. Again, to the Claimant’s detriment, no supporting evidence was entered into the record to support this claim of disparate treatment. The Organization offered up a good defense for Claimant during the investigation, and the Claimant had ample opportunity to bolster his defense on his own. The only problem was that evidence in this vein was seriously lacking and simply did not exist!
Quoting from METRA “Policies Regarding the Use of Alcohol and Drugs, 4.l – Refusals:
“Refusals will be considered as a positive test result and will be cause for formal investigation, with disciplinary action up to and including dismissal.
Under no circumstances will an employee refusing to submit to random drug testing or found tampering with, adulterating, or substituting a urine specimen be returned to service. In addition, employees who allegedly refuse to submit to random drug testing, or are found tampering with, adulterating, or substituting a urine specimen will be subject to a formal investigation and, if found guilty, will be subject to serious disciplinary action, up to and including termination.”
The aforementioned METRA rule is very clear and unambiguous, and this is exactly what happened with Claimant. By leaving the Concentra testing facility, Claimant, and no one else, is solely responsible for the final outcome.
The Carrier claims that this Board has no right to alter the guilty finding nor the discipline in cases such as this, especially when the Claimant has readily admitted to the offense. NRAB 3rd Division Award No. 28484, quoted by the Carrier in support of their decision, reads in pertinent part:
“Where, as here, there is an admission of guilt, there is no need for further proof. Where, as here, there is no mitigation of the admitted guilt, the Board is without power to reverse the discipline assessed by the Carrier The precedent in this regard is so overwhelming as to preclude the necessity of numerous citations. Third Division Awards 22840, 24591, 24993, and 25164 are but a few of the plethora of Awards on this subject. There is no basis in this case to find that Claimant had any right to believe that he could come on to Carrier’s property on his off-day and remove without anyone’s authority the Carrier’s material intended for his own personal use. The discipline assessed is warranted. The claim for reinstatement is denied.”
More on point is a case heard before Special Board of Adjustment No. 1122, NMB Case No 29, a case involving the same Railroad, and the same type of dispute of a METRA employee refusing to submit to a second urine sample after the initial one he gave was “out of temperature.” Sound familiar? This award states in pertinent part:
“The record is clear that Mr. Harris refused to submit to a second urine test as requested and left the testing area.
Mr. Harris was advised by Mr. Ross the consequences of his leaving the testing area and his action would be documented as a refusal to test.
Based on the record before us, it is clear that Mr. Harris violated the Metra Policy Regarding the Use of Alcohol and Drugs – Policy “A” as charged and there is no basis for this Board to overrule the decision of dismissal of Mr. Harris from service with the Carrier.”
And so, based on a thorough review of the investigation transcript and all attached documentation, there is no basis for this Board to overrule the decision to terminate Mr. Lane from service with the Carrier.
Last, but not least, we would be remiss if we didn’t address the additional remedies sought by the Organization. During the progression of this case the
Organization requested additional remedies to this dispute, those being that a personal apology from the Chief Engineering Officer be given to the Claimant, and that the Organization be reimbursed for all expenses incurred by it in preparing and progressing this case on behalf of the Claimant. After careful review of the record and the collective bargaining agreement, we find that nothing in the agreement provides for such remedies. If not contractually provided for, there is no way that such remedies may be entertained by this Board. Accordingly, all such claims for an apology and for reimbursement to the Organization shall be dismissed.
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 3rd day of April 2025.