Opinion of -the Board: Claimant began his service with Carrier on October 7, 1976, as a Laborer at Carrier's Conway, Pennsylvania Engine House.
During 1987, Claimant was assigned as a Laborer at the Conway Engine House.--However, due to a non-occupational disability, which is not specified in the record, Claimant did not perform any service for Carrier during the early part of 1987.
On August 25, 1987, in anticipation of his return to work, Claimant was directed to undergo Carrier's required return-toduty, re-employment physical examination which was to be conducted by Carrier's Medical Department. As a part of said physical examination, Claimant was required to submit to a urinalysis, the purpose of which was to check for the presence of a variety of prohibited drugs in tile returning employee's system.
According to the record, under Carrier's drug testing program the employee's urine sample is collected as a part of the employee's physical examination; the specimen is then sent to the Roche Biomedical Laboratories, Inc.-for testing following a strict chain-of-custody procedure; the specimen is then submitted to an initial drug screen and, if a positive result is received, a more sophisticatedtest (gas chromatography - mass-spectrometry test [GC/MS]) is used to confirm the results. Under this particular procedure which is authorized by Carrier, of the various drugs which are tested for by Roche Biomedical Laboratories, Inc., the cut-off level for cannabiniods (i.e. - marijuana) is 50 nanograms per milliliter (NG/;IL).
Pursuant to Claimant's August 25, 1987 reemployment physical examination, Claimant's urine--spocimen-was-sent to the Roche Biomedical Laboratories, Inc. for testing. On September 1, 1987, Carrier's Medical Department was notified by Roche Laboratories that Claimant's urine specimen had tested positive for marijuana both on the initial screen and on the confirming test. As a result of the positive test -results, Claimant was medically disqualified by Carrier for rocmployment.
dependent upon or use drugs which may impair sensory, mental-_ or physical functions." In-that same- letter, Dr. Gebus offered Claimant the option of either ridding his ". . system -of Cannabinoids and other prohibited drugs and to provide a negative urine sample within 45 days ... (pr)-...-be-subject to dismissal"; or, in the alternative, contacting Carrier's Employee Assistance Counselor for the purpose of undergoing drug abuse treatment, in which case, the time period within which he was required to provide a negative urine sample could be extended to 45 days after he completed- the EAP program, or a total of 125 days from the date of the letter, whichever came first. According to -the record, Claimant elected not to seek counseling; and he did, in fact, provide a negative urine sample within the required 45 days time period.
In an October 19, 1987 letter, Claimant was informed by Dr. Gebus that his urine sample had tested negative, and that, as a result, he would be qualified for return to service on October 20, 1987. In that same letter, however, Dr. Gebus further informed Claimant that he would be subject to future drug testing in order to assure compliance with Carrier's drug free policy for employees; and that any failure to comply with said policy could subject Claimant to dismissal. The significant portions of said letter are as follow:
Claimant, apparently, was-reinstated by Carrier subsequent to his requalification and receipt of Dr. Gebus' October 19, 1987 letter to him.
In a Notice dated December 21, 1987, Claimant was notified by Carrier that lie was to attend a Trial which was- scheduled for January 6, 1988, for the purpose of investigating the following charges:
Claimant's Trial was held as scheduled; and as a result thereof, Claimant was found guilty as charged, and he was "Dismissed in All Capacities" from Carrier's service effective January 15, 1988.
Carrier's basic position in this matter is that Claimant was on notice that he was subject to random testing for three (3) years after he finally submitted a negative drug test result. However, only two (2) months later, Claimant was, once again, conclusively found to be using cannabis which is a substance'which is specifically prohibited by Carrier's drug policy.
Carrier also argues that,its drug testing policy is -both reasonable and necessary because drug abuse is a serious societal problem in general, and can have a particularly devastating'effect. when used by employees, such as Claimant, who are responsible for the maintenance and movement of trains. Accordingly, Carrier maintains that the potential devastation in such situations "- . is not limited to death or injury to railroad employees or ~an individual member of the public, but can expose entire communities to potential disaster." Carrier further notes that a number of particularly costly and damaging railroad accidents have recently occurred -- some involving this particular Railroad -- which have been attributed to employee drug use. Such behavior, Carrier argues, need not be tolerated; and when detected, is a dischargeable offense.
Lastly, Carrier argues that there is a great number of Public Law Board awards and Special Board awards that have upheld the reasonableness of Carrier's drug policy, and have sustained management's right to discharge employees for violation of drug testing requirements in situations similar to that involved in the instant case.
In its argumentation, Organization contends that Carrier's termination of Claimant was improper for _both procedural and merits reasons.
According to Ort;unization, -Claimant'-s 'trial of January 15, 1988, was procedurally defective because it was held in violation of Rule 20(a) of the parties' controlling Agreement which requires that such a Trial is to be conducted in a "fair and impartial" manner. In support of this charge, Organization contends that the
The Board has carefully read studied and considered the complete record which has been submitted in this case, and is persuaded that Carrier's position is correct and, therefore, must be sustained. The rationale for this determination is as follows:
First, Organization's procedural objection is found to be unmeritorious. In this regard, Organization has failed to establish how the pre-marking of Carrier's exhibits -- even if such did occur -- was prejudicial to Claimant's position, or constituted reversible error on Carrier's part.
Second, as a general principle, we find Carrier's drug policy, both in its formulation and administration, -to be reasonable-- and fair, particularly in light of the dangerous nature of the work which is involved in the railroad industry.
Third, as an extension of the proceding area of consideration, we concur that Carrier is entitled to expect a drug-free workforce, and to promulgate and enforca -reasonable rules, regulations, policies and procedures among its employees in the pursuit of that goal.
In considering the facts of record as they have been presented in this case, we find that Carrier's dismissal-of Claimant was both a reasonable and proper exercise of managerial discretion. Accordingly, during Claimant's reemployment physical examination, he was found to be in violation of Carrier's drug policy. Ile was given an opportunity to rectify the situation -- which he did. After submitting a negative urine sample, Claimant was returned to work and he was placed on notice by Carrier that he would be subject to random drug testing, and that any further drug use on his part within a three (3) years period of time could result in his dismissal. Claimant's knowledge of the terms and conditions of his reinstaterienl, and his acceptance-Chereof as a condition of said reinstatement cannot be challenged. Despite such knowledge and acceptance, however, and with total disregard [or Carrier's drug policy, as well as Carrier's clear warnings and his obvious knowledge of his vulnerability fur any future violations thereof, Claimant -- a mere Lwn (2) months later.-- was once again found to be in violation of Carrier's drub policy by- virtue of the detection of his continued use of marijuana. ---- -