PUBLIC LAW BOARD NO. 3514
Case No. 316 Award No. 316
PARTIES Brotherhood of Maintenance of way Employes
to -and-
DISPUTE: Consolidated Rail Corporation
STATEMENT OF CLAIM:
Appeal of Driver Frank H. McAndrew 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 Counselinq Service.
If this evaluation shows that the employee does not have an addiction
problem, the employee must provide a negative drug test within forty
five (45) days. In those cases where the evaluation indicates an addic
tion 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.
In this dispute, the record shows that the Claimant's urine sample
had tested positive for cannabis and cocaine. Pursuant to the Carrier's
Drug Testing Policy, he was instructed to rid his system of the prohibited drugs and provide a negative urine sample within forty-five (45)
days. Because he did furnish a negative urine speciman, the Claimant
was returned to duty. However, on June 17, 1987, a urine sample provided by the Claimant tested positive for certain prohibited drugs.
This test result triggered the claim before the Board because the Claimant was subsequently dismissed.
These are difficult cases for all concerned, particularly for the
organization. It has forcefully and with skill advanced-its many concerns with respect to the application of the Carrier's Drug Policy.
PLB No. 3514 C-316/A-316_
Page 2
In this respect, it particularly has raised questions about and objections to the Carrier's testing procedures as well as the Carrier's
failure to produce medical personnel at the hearing held on this matter
who could speak authoritatively about the validity of the urine test
and be cross-examined so that relevant information could be elicited.
The Board has carefully considered these contentions as well as
the other arguments presented by the organization and the Claimant.
We understand the points raised by the organization and do recognizethat they are not without merit in certain situations. However, the
record here shows that the Carrier employed a highly reputable laboratory, which used the latest techniques and procedures to assure the
accuracy of its tests. Therefore, the test result or "medical fact"
as distinguished from a "medical opinion" is established. Accordingly,
the failure to have a medical person present at the hearing held on
this matter for cross-examination does not fatally flaw the fairness
of the proceedings.
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, they
Carrier initiated a drug testina 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 numerous arbitral Awards. Given the established facts of this case, we
have no basis to arrive at an Award that runs counter to these manv
Awards. In the instant case, the Claimant was put on notice and, in
effect, he was provided another opportunity to retain his employment.
The consequences of his failure to comply with the Carrier's direction
were of his choice.
The Board does not lightly sustain the dismissal of an employee -`
with the years of service that we find here, particularly noting that
the Claimant has a good service record. Nonetheless, under the constraints that this Board must function, we cannot sustain the claim.
PLB No. 3514
Page 3
C-316/A-316
The claim is denied.
AWARD
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DomzalsICi Eckehar Muess g , J. P. Cassese
Ca rier MeT!~ex Neutral Member Employee Member