PUBLIC LAW BOARD NUMBER 3445
Award Number: 42
Case Number: 42
PARTIES TO DISPUTE
BROTHERHOOD of MAINTENANCE OF WAY EMPLOYES
AND
SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM
Bridgetender, J. J. Love, Rt. 1, Box 24-B, Salipta, AL
36570, was dismissed from service on June 20, 1986 for alleged
failure to comply with instructions of Carrier's Medical Director
and company policy to keep his system free of prohibited drugs.
Claim was filed by the Employes in accordance with Railway Labor
Act and agreement provisions. Employes request he be reinstated
with back pay for all lost time and all rights unimpaired.
FIN12INCS
Claimant's seniority with Carrier was established on April 12, 1973,
and he was promoted to Bridgetender on March 8, 1982. At the time of his
dismissal, Claimant was assigned to Jackson, Alabama.
By letter dated June 6, 1986, Claimant was charged with failure to
comply with the instructions of Carrier's medical director and Carrier's
policy, as stated in an October 3, 1985 letter of instruction, to give urine
samples in order to demonstrate that he was not using marijuana or other
prohibited drugs. Formal investigation was held on June 12, 1986. By
letter dated June 20, 1986, Claimant was advised that his violation had been
established and he was dismissed.
34q5--qZ
The issue to be resolved in this dispute is whether Claimant was
dismissed for just cause and if not, what should the remedy be.
In may 1985, as a condition of restoration to service following a prior
dismissal, Claimant provided a urine sample which tested positive for
marijuana. Following a subsequent negative test, Claimant was returned to
service, but a letter dated October 3, 1985 instructed Claimant to keep free
of prohibited drugs and advised him that he would be subject to periodic
urinalysis for the next three years. Moreover, he was advised that should
he test positive for drugs, he would be subject to dismissal. Pursuant to
the annual physical examination for Bridgetenders, Claimant gave a urine
sample on May 23, 1986--Claimant had failed to report on the original
scheduled date, May 16, 1986. -Both the EMIT test and a confirming GC/MS
test showed positive results for THC (marijuana). On the basis of this
positive result, that is, Claimant's failure to comply with his October 3,
1985 instructions to demonstrate that he was drug free, Claimant was
dismissed.
The position of the Organization is that Claimant was dismissed without
just cause because the May 23 urinalysis was ordered without any probable
cause. For instance, the Organization argues, Claimant did not demonstrate
an inability to perform his ,job and, therefore, no test should have been
ordered.
The position of the Carrier is that Claimant was dismissed for just
cause because the positive urinalysis results show that he violated his
2
--.
_ - 3
y~ls
yZ
October 3, 1985 instructions to remain drug free. The Carrier further
argues that the tests were reliable, confirming and that there was no
likelihood of passive exposure to marijuana causing Claimant's positive test
results.
After review of the entire record, the Board finds that claimant was
dismissed for just cause and that the claim must be denied.
The Carrier has established through substantial, credible evidence that
Claimant tested positive for THC (marijuana) in his May 23 urinalysis. This
positive test clearly violates the instructions given to Claimant by letter
of October 3, 1985. Claimant knew by the explicit language of the letter
that failure "to demonstrate that (he was] no longer using marijuana or
other prohibited drugs would subject him to dismissal. It was violation of
the instructions in the letter and not other rules or directives which is
the critical inquiry in this case. Thus, the violation was clearly shown.
The accuracy and proper identification of the drug tests have not been
credibly challenged.by the Organization and appear reasonable in the
record.
Questions have been raised in this proceeding regarding the appropriat
eness of the Carrier's drug policy and testing practices, The Board
recognizes that prohibited drugs are not only illegal but generally impair
judgment and coordination, The carrier's concern that its employees be
drug free is reasonable, proper and consistent with good labor relations
policy, The periodic testing for drug use helps to ensure the health and
3
3yys- qz.
safety of employees and the public at large. The Carrier has a legitimate
interest in maintaining its sound policy against drug use.
AWARD
Claim denied.
/ ~"-5
Neutral, Member'
i~
U
rrier Mer7lber
Orga tion Memb