PUBLIC LAW BOARD NO. 3514 -
Case No. 336 Award 336
PARTIES Brotherhood -of Maintenance of Way Employes
to -and- -
DISPUTE: Consolidated- Rail Corporation
STATEMENT OF CLAIM: -
Appeal of Trackman Robert N. Scales to be returned to
the service with back pay and benefits restored.
FINDINGS: The central issues in thiscase 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 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, who was subject to the Carrier's random drug testing
process because he had previous problems concerned with the use of
prohibited drugs, tested positive for cannabinoid on July 15, 1987.
Thus, he was separated from the service.
PLB No.
3514 C-336jA-336
Page 2
These are difficult cases for all concerned, particularly for t~_e
Organization. It has forcefull:· and with skill advanced its many concerns with respect to the application of the Carrier's Drug Policv.
In this respect, it has raised -;uestions about and objections to the
Carrier's testing procedures as well as the Carrier's failure to rroducn
medicalpersonnel at the hearing held on this matter who could s-peak
authoritatively about the validit=·-of the urine test and be crossexamined so that relevant information could be elicited:
The Board has carefully considered these contentions. We under-
stand the points raised by the organization and do recognize that they
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 cross
examination does not fatallt· 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 o-° -
its employees, as noted earlier. The substance of the Carrier's prograas 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 Claimantwas 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. . Domza slcceha~ . essig J. P. Cassese
Carer Memb r Neutral-Membe Employee Member
Dated: 6o-~Xp0