PUBLIC LAW BOARD NO. 3514
Case No. 318 Award No. 318
PARTIES Brotherhood of
Maintenance of
Way EmDloyeS
to -and- -_
DISPUTE: Consolidated Rail Cornoration-
STATEMENT OF CLAIM:
Appeal of Trackman Frederick Guziec to be returned to
the service with all back pay and benefits restored.
FINDINGS: The central issues in this case-are concerned with the aaoli
cations-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 addictionproblem, the employee must provide a negative drug test within forty-five (45) days. In those cases where-the-evaluation indicates an 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.
The Claimant was directed to provide a negative drug screen. After
he failed to comply with the Carrier's directive and subsequent to an
investigation, held _in absentia, on August 6, 1987, he was dismissedfrom the service. The record shows that an earlier investigation had
been postponed at the request of the Claimant. However, although the
Claimant had been duly notified of the hearing held on August 6, he chos
not to attend. Under the circumstances, we find the proceedings which
led to his dismissal did not violate the Claimant's substantive rights.
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-318/A-318
Page 2
In this respect, it 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
authoritative-1v about the validity of theurine test and be crossexamined so that relevant information could be elicited.
The Board has carefullv considered these contentions. We understand the points raised by the Organization and do recognize that then
are not without merit in certain situations. However, the record here
shows that the Carrier employed a highly reputable testing facility, -
which used the latest techniques and procedures to assure the accuracvof its tests. Therefore, it is established that the test result is a"medical fact" as distinguished from a "medical opinion". Accordingly
the failure to have a medical person --present at the hearing 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, the
Carrier initiated a drug testing program which it announced to each of
its employees, as noted earlier. The substance of the Carrier's progrz:,
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 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 consequences of his failure to comply with the Carrier's direction
were of his choice.
AWARD
The claim is denied.
F. .Domzax ki ·cce _ Muess g J. . Cassese-.
C~/rier er Neutral Memb r Employee Member
Dated:
/0-
41-Fo