PUBLIC LAW BOARD N0. 3514
Case No. 476 Award No. 476
PARTIES Brotherhood of Kaintenance of way Employes
to -and
DISPUTE: Consolidated Rail Corporation
STATEMENT OF CLAIM:
Appeal of Trackman, Michael E. Joyce, to have his
discipline of dismissal set aside and to be restored
to the service.
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 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 official investigation in the case at hand was held _in absentia
After careful review of the record, we find that the Claimant was properly notified. His failure to appear was of his choice. Moreover,
we find that the Claimant was actively represented by the organization
and his rights were fully protected. With respect to the merits,
there is sufficient evidence to show that the Claimant failed to
comply with the Carrier's Drug Testing Policy.
Page No. 2
These are difficult cases for all concerned, particularly for the
Organization. It has forcefully and with skill advanced its many con-
cerns with respect to the application of the Carrier's Drug Policy. -
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
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. We understand 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 accuracy
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 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.` . Domz s i Ecke ' .Muesli J. P. Cassese
Ca6rier er Neutral Member Employee Member
Dated:
~-~7-9/