PUBLIC LAW BOARD NO. 3514
Case No. 329 Award No. 329
PARTIES Brotherhood of Maintenance of 'gay Employes
to -and-
DISPUTE: Consolidated Rail Cornoration-
STATEMENT OF CLAIM:
Appeal of Machine Operator Curtis J: May to be returned
to the service with 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 ofthe 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 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 Grievant, on June 23, 1987, was directed to provide a negative
drug screen within forty-five (45) days. T-he evidence shows that he
failed to comply with this request and
he
was dismissed from the
service.
PLB No. 3514 C-329/A-329
Page 2 -
These are difficult cases ',_r all concerned, particularly for t^e
organization. It has forceful'!,.- and with skill advanced its many concerns with respect to the ap^1=cacion of the Carrier's Drug Policy.
In this respect, it has raised -luestions-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-ofthe urine 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 theyare not without meritin 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 accuracy -
of its tes-ts. 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 crossexamination 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 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 consequences of his failure to comply with the Carrier's direction
were of his choice.
AWARD
The claim is denied. -
D ~,7~ r.
F.,' . Domza i Eckehge(:r lT4uessig ' J. P. Cassese
Corier M r Neutral Member Employee Member
Dated: &/, - ~t -~0 - _ _