File MW-FTW-93-86


Parties Brotherhood of Maintenance of Way Employes
 to and
 Dispute Norfolk & Western Railway Company

 Statement
 of Claim: Claim on behalf of E. D. Dandridge requesting reinstatement
 and pay for time lost as a result of his dismissal for
 failure to comply with the instructions of Carrier's
 Director of Medical Services and Company policy.

 Findings: This Board has jurisdiction of this case by reason of
 the parties Agreement establishing the Board therefor.
 The Carrier, on February 12, 1985, placed all employees
 on notice that all Company physicals would henceforth
 include a drug screen urinalysis. That Company medical
 policy forbade "the act of employment for those who depend
 on or use drugs which impairs sensory, mental or physical
 functions."
 The above policy was modified in August 1985 requiring
 any employee who tested positive for a prohibitive substance
 to submit a negative retest to a Carrier designated facility
 or seek help from the Company's drug and alcoholic
 rehabilitation services (DARS) program within 45 days of the
 letter informing him on the positive test result. Employees
 complying with such instructions were returned to service
 upon proof of testing negative. Such employees were and are
 also instructed, however, to keep their system free from
 prohibitive drugs. Such employees are also advised that
 they may be subject to further testing after the return to
 service. They were further advised that if any future test
 was positive that they would be subject to dismissal for
 failure to obey instructions and Company policy.
 Again, in September 1986 the drug policy was
 distributed to all employees in a pamphlet entitled health
 and safety information along with information on drugs and
 Federal Railroad Administration (FRA) regulations on the
 control of alcohol and drug abuse in railroad operations.
 The policy contained in the above pamphlet was replaced
 on January 26, 1990 by an addition to the Safety and General
 Conduct Rule. Such policy was revised slightly to make it
 consistent with a new FRA regulation. The essence of the
 r
 -2- Award No. 156

                change is that if the employee tests positive under any other circumstances outlined, i.e., physical examination, or if the Medical Director has reason to believe, or has a question as to whether the employee meets the Company's medical standards, or when required or permitted by applicable Federal regulations.


                Here that Claimant was notified by the Medical Director on November 25, 1987 that the drug screen included with his return-to-work physical exam tested positive for marijuana. He was removed from service pending his supplying a negative drug screen.


                The Claimant furnished a negative drug specimen within the allotted period, 45 day period. Dr. Ford advised the Claimant on December 17,_ 1987 that he was being returned to service but that he must keep his system free of prohibitive substances and that should a further test be positive he would be subject to dismissal.


                The new Medical Director J. P. Salb wrote to the Chief

                Engineer _on October 13, 1993 advising that he had reason to

                question the Claimant's ability to meet the medical

                standards. The Chief Engineer was instructed to have the

                Claimant tested at a medical facility within 48 hours. The

                Claimant, on October 18, 1993 submitted a urine test for

                drug testing and _that sample tested positive _for cocaine _and

                marijuana.


                The Claimant was removed from service, cited to an investigation for failure to comply with the Company policy and the instructions of the Carrier. As a result of the investigation held on December 8, 1993, Claimant was concluded to be guilty as charged. He was dismissed from service as discipline therefor.


                The propriety of Carrier's policy on drugs has been confirmed in litigation and arbitration, including awards on this property. Here, the Carrier established through substantial, credible evidence on the record that the Claimant violated the Carrier's drug policy. The Claimant also failed to follow the instructions of the Carrier's Medical Director. Awards by our Board and other adjustments boards on the property have held the proposition that the Carrier has lawful and reasonable rules, that they are uniformly applied and that such Boards have generally upheld Carrier's drug policy in cases as such as here where the employee has failed to comply with the Carrier's drug policy to keep his system clear of prohibitive drugs. The Claimant has admitted that he knowingly used marijuana and cocaine but asserts that he is now seeking treatment for a drug

                                    pj,4 OLo

                        -3- Award No. 156


        problem. While that is commendatory, the Claimant's chosen action was outside the fact and purpose of the provisions of the policy. This Board unlike the Carrier cannot extend leniency.


            The claim will be denied.


Award: Claim denied.

      a ons, Jr., Em o e Member E. N. Jac , Jr., Car er Member


                  .1-s -~ ~ ~z~ 2vx

Arthur T. Van Wart, Chairman

and Neutral Member


r

 Issued July 30, 1994.