File MW-DEC-87-9


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

 Statement
 of Claim: Claim on behalf of J. A. Wolf requesting reinstatement
 and pay for time lost as a result of his dismissal for
 failure to comply with the instructions of Carrier's Medical
 Director and Company Policy.

 Findings: The Board has jurisdiction of this case by reason of
 the parties Agreement establishing this Board.
 This is another in the series of drug cases involving
 employees who are returning to service, and after taking the
 required physical examination, including a drug screen
 urinalysis, are found to have tested positive. Such
 employees resubmit a negative test finding within the
 required 45 days and they then are reinstated to service but
 are subject to sporadic testing for 3 years and on such
 testing are again found to have tested positive. Thus,
 failing to comply with the conditions under which they were
 reinstated to service they now are in violation of
 Carrier's medical policy and after a formal investigation
 are dismissed from service therefor.
 See our Awards 85, 87, 89 and 94, the findings of
 which, by reference, are incorporated herein.
 In the instant case, following a return to work
 physical examination on December 8, 1986, the results of the
 Claimant's urinalysis test reflected positive for marijuana.
 The Claimant was advised, on December 26, 1986, to produce a
 negative test within 45 days. He submitted a urine sample
 on February 5, 1987 that tested positive for marijuana. The
 last deadline date for presenting a negative test was
 February 11, 1987.
 Claimant neither entered the DARS program, nor
 submitted the required negative urine sample, by February
 11th. His supervisor was so notified on February 13, 1987.
 Claimant was required to attend a formal investigation
 on the charge for such failure. The investigation was
 postponed until May 26, 1987, at which time, it was held.
 As a result of the evidence adduced thereat Carrier,
                                  PC. /3 1760

                          -2- Award No. 94


        concluded that Claimant was guilty. He was dismissed from service as discipline therefor.


        Claimant admitted that he received Dr. Ford's December 26, 1986 letter. He also conceded that he neither enrolled in the DARS program, nor had provided a negative urine sample within the 45 day limit. In this, as all its other tests, Carrier employed the EMIT and confirmed all positive EMIT tests by a GC/MS (Gas Chromatography Mass Spectrometry) which is supported by a Mayo Clinic study:


        "If a positive test result will put the patient in consideration jeopardy and the screening result is the only evidence of drug use, confirmatory testing is imperative. Of the confirmatory tests, GC/MS seems to have the specificity necessary to provide a high level of confidence in the results. A combination of the EMIT procedure with a sensitivity level of 20 NG/ML and GC/MS confirmation yields virtually 1001 accuracy in detection of marijuana abuse."


        The Brotherhood also believes that the latter test is fair, reasonable and realistic because it so stated in its May 1987 edition of the BMWE journal.


        We find no errors so egregious in the handling of this

        case as to be the cause for reversal of the discipline.

        Claimant may have tested negatively in a drug screen on

        March 10, 1987, nearly 30 days after the required 45

        grace eperiod but such test failed to comply with Ford's

        instructions and the Carrier's drug policy. Further, the

        sample in that test and the sample used in the Carrier's

        required test differ. Irrespective, our Board decided that

        issue previously by denying the claim based thereon in our

        Award No. 84.


        In the circumstances this case, the Board finds the discipline imposed is consistent with its well publicized drug policy. This claim will be denied.


Awar : Claim denied.

 S. . Hartraons, Jr , Employee Mem er . . Mi l.er, Car Member

Arthur .Van Wart, Chairman

and Neutral Member


Issued August 30, 1989.