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BEFORE PUBLIC LAW BOARD NO. 1837
Brotherhood of Maintenance of Way Employees
and
Norfolk and Western Railway Company
Case No. 75
Statement of Claim: Claim of the System Committee of the
Brotherhood that:
1. The Carrier violated the Agreement when it improperly
withheld Trackman S.A. Black from service without just and
sufficient cause and without the benefit of an investigation
(File MW-FTWS-88-198).
2. Trackman S.A. Black shall now be compensated for all time
lost commencing October 17, 1988 and continuing until such
time he was returned to service.
Findings:
The Claimant was employed as an extra gang truck driver by
the Carrier. In August 1988, Claimant was notified that he had
tested positive in a drug screen and must submit a negative
sample within forty-five days. Claimant subsequently submitted a
negative sample and was returned to service with the Carrier on
October 17, 1988. On or about October 26, 1988, before Claimant
was able to displace a junior employee, the Carrier notified the
Claimant that he would continue to be held out of service pending
further medical review. The Claimant eventually returned to
service on December 15, 1988, after a psychiatric examination was
completed.
The organization filed a claim on the Claimant's behalf,
contending that the Carrier withheld the Claimant from service
for about two months without verifiable justification. The
Carrier denied the claim, the organization appealed, and the
claim now is before this Board for adjudication.
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This Board has reviewed the record in this case and we must
find that the Organization has not presented sufficient evidence
to support its position that the Claimant was unreasonably held
out of service. Also, the Organization has not proven that this
case involved discipline requiring an investigation pursuant to
the Rules. Consequently, the claim must be denied.
The record reveals that'the Claimant tested positive for
marijuana in August of 1988. He later recognized his problems
and entered the Carrier's DABS program in September of 1988, but
he did not successfully complete that program. The Claimant did
furnish a negative urine sample and was subsequently returned to
work on October 17, 1988.
However, on October 26, 1988, Claimant told the Supervisor
that he needed more time because of "personal problems". After a
second complaint from the Claimant five days later, Claimant was
referred to a psychiatrist whom he saw on December 2, 1988. The
psychiatric report was received by the Carrier on December 13,
1988, and the Carrier was advised that the psychiatrist had
determined that the Claimant was not suffering from a mental
disease. Consequently, the Claimant was returned to service on
December 15, 1988.
It is fundamental that a Carrier has the right to determine
the physical and mental fitness of an employee before it sends
him out to work on the Carrier property. Claimant was an
admitted drug user who had indicated to his Supervisor that his
"personal problems" were overwhelming him and he was not ready to
return to work. Given those statements on the part of the
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Claimant about his own physical and mental well-being, carrier
had a right to require a psychiatric examination before putting
Claimant back to work. Once the report came back and the Carrier
was satisfied that the Claimant was physically and mentally fit,
it put him back to work in a timely fashion. Consequently, this
Board finds that there was no violation of the Rules and the
claim must be denied.
AWARD
Claim denied
PETER R ME ERS
Neutral Me ber
Carrier ember/
Dated: Oc.T
Z®_ /5'?Z
Organi~7 Member