PUBLIC LAW
BOARD NO. 3514
Case No. 314 Award No. 314
PARTIES Brotherhood of Maintenance of Way Employes
to -and-
DISPUTE: Consolidated Rail Corporation
STATEMENT OF CLAIM:
Appeal of Welder Walter E. Karpinski to be returned to
the service with all back pay and benefits restored.
FINDINGS: The central issues in this case are concerned with the '°
applications of the Carrier's Drug Testing Policy. On February 20,
1987, the Carrier's Chairman and Chief Executive Officer sent
a
letter
to each employee in which he explained the Carrier's concern for safety
and how the use of illegal drugs by employees impaired its operations
and, threatened the safety of the public. A summary of its Drug Policy
was attached to each of these letters.
A key feature of the Drug Policy provides the employee with an
option for an evaluation by the Carrier's Employee Counseling Service.
If this evaluation shows that the employee does not have an addiction
problem, the employee must provide a negative drug test within fortyfive (45) days. In those cases where the evaluation indicates and addiction problem and the employee enters an approved treatment program, he
may be returned to service upon appropriate recommendation and he must
provide a negative test within 125 days of the date of the initial
positive test.
On April 16, 1987, the Carrier advised the Claimant that a drug
screen urinalysis conducted as part of his medical evaluation on April 9,
1987 was positive for cannobinoid. He was given a choice of providing
a negative urine sample by May 31, 1987 or enter an approved treatment
program which would serve to extend the time period for a negative
urine sample.
The record shows that the Claimant failed to provide a negative
urine sample from an approved service facility. He mainly contends
that it was his understanding that he had to wait the full forty-five
(45) days before he could submit his next urine sample.
PLB No. 3514 C-314/A-314 -
Page Z
These are difficult cases for all concerned, particularly for the
Organization. It has forcefully and with skill advanced its many con- -
cerns with respect to the application of the Carrier's Drug Policy.
In this case, the Carrier introduced the results of the Claimant's
urinalysis test, however, the medical experts responsible for the test
were not present at the hearing to be challenged by the organization.
Under certain circumstances, the organization arguments could lead
to a sustainable claim. However, we have a testing process here that
includes the use of a highly reputable laboratory and withstands
vigorous scrutiny. Accordingly, because the key data, in this case the
results of the urine test, came about from this process, it can be
reasonably judged to be a medical fact. Therefore, the unavailability
of a Carrier medical person for cross-examonation with'respect to the
established medical factdoes not make the hearing an unfair one.
The Board has carefully considered these contentions. We understand
the points raised by the Organization and we
do
recognize that they are
not without merit in certain situations. In this case, we conclude that
the claim must be denied.
Railroad work is dangerous. The safety of the Carrier's workforce,
as well as the public, requires positive measures to ensure that the -
inherent dangers are minimized. In furtherance of these efforts, the
Carrier initiated a drug testing program which it announced to each of -
its employees, as noted earlier. The substance of the Carrier's program
as well as ones like it used by other Carriers, has been upheld by nu
merous arbitral Awards. Given the established facts of this case, we
have no basis to arrive at an Award that runs counter to these many
Awards. In the instant case, the Claimant
was
put
on
notice and, in
effect, he was provided another opportunity to retain his employment.
The Board does not lightly sustain the dismissal of an employee
with the years of service that we find here. Moreover, it appears that
prior to-the incident giving rise to this claim, the Claimant had a
spotless discipline record. Nonetheless, under the constraints that
a
this Board must function, we cannot sustain the claim.
PLB No. 3514 C-314/A-314
Page 3
The claim is denied.
AWARD
F. J.: Domza sk~-~ Eckeh rd Muessig
Career Membef.J Neutral Membe
,3. P. Cassese
Employee Member