1. That in violation of the current Agreement, Laborer S. Bair, Alliance, Nebraska, was unfairly dismissed from service of the Burlington Northern Railroad Company, effective March 27, 1985.
This Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act as amended; that this Board has jurisdiction over'the parties and the subject matter of the dispute herein; that this Board is duly constituted by an Agreement dated February 10, 1982; and that all- parties were given due notice of the hearing held on this-matter. I. BACKGROUND AND SUMMARY OF THE FACTS
At approximately 5:00 a.m. on February 18, 1985,Flostler Hill and her Helper, Claimant, were moving a locomotive consist at Alliance Diesel Shop when Locomotive Unit 5124 went through a switch derailing the lead truck of the Unit. The Hostler and Claimant each completed an F-27 damaged equipment report. In accord with Carrier policy as expressed on the Rule G card, the Assistant General Foreman requested Claimant and the Hostler to furnish urine samples. Both complied with the order. The Assistant General Foreman emphasized that he demanded the urine specimens because the locomotive was run through a switch and Carrier policy required a drug screening test. Claimant's demeanor was normal- and he did not exhibit any outward symptoms of either drug or alcohol usage. -
Claimant provided the urine specimen at Box Butte General Hospital in Alliance. A Carrier Patrolman secured the sample in a sealed box and later in the day delivered the urine sample to Western Pathology in Scottsbluff, Nebraska. The pathology
Claimant's urine. The presence of THC was confirmed by an EMIT' test. The test results were negative for alcohol and other
controlled substances although the test did detect the presence of some legal over-the-counter drugs in Claimant's body.
For some unknown reason, the Carrier did not receive the pathology consultant's February 19, 1985 test report until on or about February 25, 1985._ The Carrier -immediately withheld Claimant from service pending an investigation to determine if he violated Carrier Rules 565 and 566 (Rule G) on February 18, 1985.
At a March 14, 1985 investigation, Claimant denied using marijuana while either ~on duty or subject to dutyon February 18, 1985. Claimant hypothesized that he might have passively inhaled some marijuana smoke because he had recently been.in a room where people were smoking the drug. The Patrolman declared that although the urinalysis was positive for-THC, the test did riot disclose the level of THC in Claimant's urine. Thus, the test did not reveal if. Claimant was under the influence of the drug on February 18, 1985.
Claimant's representative vigorously objected to the absence of Dr. Armstrong, the Supervisor of Testing Procedures at Western Pathology, from the investigation. According to Claimant's representative, if Dr. Armstrong had appeared at the
The Carrier contends that it instituted a policy for policing the use of drugs by its employees following two fatal collisions on the Denver Region in April, 1989. Employee drug use contributed to causing both tragedies. The Carrier's policy provides that whenever there is a minor-human factor accident such as running through a switch, the Carrier has probable cause to demand that employees submit to a urinalysis. While the Carrier denies that it engages in random testing, it acknowledges that its policy, when applied, sometimes operates like a random selection testing program.
According to the Carrier, Claimant freely submitted to a urinalysis and the test yielded positive results for cannabinoids. The presence of a psychoactive chemical element in Claimant's body on February 18, 1985 shows that Claimant was in violation of Safety Rules 565 and 566. Perhaps, Claimant was not under the most intense and immediate influence of the drug but to piotect the public, the Carrier must insist that employees be drug free. The only acceptable test result is negative. An employee's demeanor and appearance are woefully inadequate to detect the presence of marijuana. Symptoms of drug usage are not readily observable. Since an employee may escape detection by observation, the urinalysis is the only practical method-`of detecting the presence of drugs in Claimant's body.
A Rule G violation warrants dismissal. The Carrier may have 'reinstated. Claimant on a leniency basis if he had been
willing to cooperate with the Employee Assistance -Counselor. However, leniency is a Carrier prerogative and when Claimant refused to contact the Counselor, the Carrier legitimately exercised its discretion to permanently discharge Claimant from service.
At the onset, the Organization argues that Claimant was deprived of a fair and impartial hearing because- the General Foreman of Locomotives preferred the charges against Claimant, presided over the hearing and imposed-the discipline. The Organization also submits that Claimant could not confront his primary accuser since the author of the-urinalysis report, Dr. Armstrong, did not appear as a witness at the investigation.
Turning to the merits, the Organization argues that the Carrier failed to meet its burden of proving that Claimant had used marijuana while on duty or while subject to duty on February 18, 1985. The Assistant General Foreman related that Claimant acted normally. The Carrier conceded that Claimant was properly performing his duties (and not under the influence of any drug) because it allowed him to work for six days after -the February 18, 1985 incident. Moreover, there is nothing in the record to suggest that Claimant was derelict in performing his duties or
After- carefully reviewing the transcript of the March 14, 1985 investigation, we find that Claimant was provided -w,i th
prejudice Claimant's defense. on the contrary, Claimant's representative vigorously and ably defended .Claimant at the hearing. Similarly, Dr. Armstrong's absence from the investigation did not undermine Claimant's defense. Carrier witnesses as well as the Carrier itself admits that a positive THC test result does not necessarily mean that Claimant was under the influence of the narcotic on February 18, 1985. The Carrier is basing its discipline solely on the presence of the drug in Claimant's body. Thus, Dr. Armstrong's testimony would not have added any material evidence to the investigation record.
In Award No. 86, this Board ruled that the Carrier bears, the burden of showing probable cause (a reasonables_uspicion) for requiring an employee to provide a urine specimen. As in Award No. 86, the Carrier herein failed tooffer any evidence demonstrating that Claimant was partially or.totally responsible for Unit 5124 running through the switch on February 18, 1985. Put differently, the record is void of any evidence showing that Claimant negligently performed his duties or otherwise contributed to the cause of the mishap.
When the Carrier restated and amplified its existing probable cause policy (on November 5, 1984), the Carrier's Senior Vice President declared: