R.
PUBLIC LAW BOARD N0. 1760
Award No. 108
Docket No. 108
N&W File MW-MOB-88-17
Parties Brotherhood of Maintenance of Way Employes
to and
Dispute Norfolk and Western Railway Company
(Former Wabash)
Statement
of Claim: Claim on behalf of C. M. Adams requesting reinstatement
with all rights unimpaired and with pay for all time lost as
a result of his dismissal following a September 16, 1988
investigation in which he was charged with failure to comply
with the instructions of the Carrier's Medical Director in
that Claimant did not keep his system free and clear of
prohibited drugs in accordance with the Carrier Policy
concerning drugs.
Findings: The Board has jurisdiction of this case by reason of the
parties Agreement establishing this Board therefor.
Claimant, following a formal investigation, held on
September 16, 1988, in absentia because of his failure to
appeal thereat was adjudged guilty of the charge stated in
the Statement of Claim. He was dismissed as discipline
therefor.
The transcript reflects that Claimant returned to
service in July 1987. He took a return to work physical
examination on July 9th which included a drug screen. The
drug screen analysis registered positive for marijuana
(THC). Dr. Ford's July 22, 1987 letter advised Claimant of
the results and also that he had 45 days in which to provide
a negative sample or enter the OARS program.
Claimant entered the DARS program on August 16, 1987.
He successfully completed that program. Claimant was
instructed to keep his system free of drugs and that future
drug testing would be required for three years. He was
satisfactorily released from the program on October 12,
1987 but his seniority did not permit him to hold any job at
that time.
Claimant was recalled to service in June 1988. He took
his work physical examination on June 8, 1988. However,
Claimant was injured in an off duty accident in July and was
off medically. When he returned he took a Company physical
examination (drug screen). It was performed July 29, 1985
and again tested positive for marijuana (THC).
Claimant was accorded the due process to which entitled
under-his discipline rule. That he was removed from service
pending an investigation was not in violation of Rule 30.
Nor can holding the investigation in his absence be
considered as violative of Rule 30. The investigation is
Claimant's assurance that Rule 12, negotiated by the
organization, required that he get a fair hearing before
discipline could be imposed by the Carrier. That he chose
to waive attendance thereat was his own choice. However, he
is bound by the evidence adduced thereat. Claimant's
absence therefrom, without good cause, is at his own peril.
Carrier drug policy has been well tested. In RELA
Norfolk and Western Railway Company, No. 86 C 2094, the U.S.
District Court of Eastern Illinois, found that the drug
testing component of Norfolk Southern's Medical Policy was a
proper exercise of managerial prerogative.
Our Board has generally upheld the Carrier's drug
policy in circumstances, as here, where the employee has
failed to comply with Carrier's drug policy to keep his
system clear of prohibitive drugs.
The dismissal is not considered unreasonable because it
was the Claimant's second violation of the Carrier's drug
policy and he was aware that it would result in dismissal.
This claim will be denied.
Award: Claim denied.
. A. on s, Emplo Member Miller, Jr. , per Member
r
Arthur T. Van Wart, Chairman
and Neutral Member
Issued February 23, 1990.