PUBLIC LAW BOARD NO. 3514
Case No. 333 Award No. 333 =
PARTIES Brotherhood of Maintenance of_Wav Employes
to -and-
DISPUTE: Consolidated Rail Corporation-
STATEMENT OF CLAIM:
Appeal of Machine Operator Michael L. Sideroff 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 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 forty-,
five i45) 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, because he had been in violation of the Carrier's
Drug Policy, was subject to random drug testingfor a period of three
years. Because a urine sample that he provided on August 18, 1987
tested positive, he was subsequently dismissed from the service.
PLB No. 3514 C-333/A-333
Pace Z
These are difficult cases for
all
concerned,--particularly for t:~eOrganization.- It has force tuli·,* and with skill advanced its many concerns with respect to the a^cllcation of the Carrier's Drug Polic"·.
In this respect; it has rii;, . ::-~t~ons about and objections to the
Carrier's testina procedures as well as the Carrier's failure to produce
medical personnel at the hearic 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 carefull_: considered these contentions. We under- -
stand the points raised by the -raanization-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 accurac~_·
of 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 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.
F. . Domz~jki Ecke
cr
P.uessl J. P. Cassese -
C&tier Mehd~er Neutral Memb Employee Member
Dated:
Wa
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