PUBLIC LAW BOARD NUMBER 3530 ~~.
Award Number: 106

 Case Number: 106

 PARTIES TO O DISPUTE



















          Claimant entered the Carrier's service on August 10, 1981.


    1 1t

    'The Carrier instituted a pol~icyon February 12, 1985, modified on '


        August 1, 1985', by which any employee testing positive for a controlled

        substance would be subject to dismissal unless he or she complied with the -

        CarYier's'instructions'Eo retest at a Carrier-designated,facility within 45 -

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        days: and provided-a,negative sample at that time. Employees then testing .


        negdtive.woul;d'be.k'ubj2ct to retesping for three years...

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          On April 24, 1987, the Carrier's Medical, Director, Dr. G. W. Ford,


' advised Claimant that, the urine ~saYnp1e provided as part of a return to word:.,
        physical examination had tested positive for marijuana., Claimant was held

        out of service pending 'a. negative sample, which he provided within 45 days.


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By letter dated June 2, 1987, Dr.~.'Ford advised Claimant that'he.was eligible,`', to return to work. Dr. Ford also directed Claimant to remain drug free, advised him of the provision for periodic retesting for-three years and cautioned him that a positive testwould subject Claimamt to'd3.smissa,7,.

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By letter dated,September 2, 1988, Claimant was required to undergo a

 follow up drug urinalysis, which was conducted September 14, 1988. After ,,

 conducting two tests (enzyme immuno assay technique and gas chromatography/- ,

 mass spectrometry), it was determined that Claimant tested positive for,

 amphetamines, methamphetamines, benzodiazepines and marijuana.

 By letter dated September 20, 1988, Claimant was directed to attend a formal investigation on charges that he had failed .to comply with Dr. Ford's

 instructions and with the Carrier's drug policy. Thai investigation was -
 postponed until January 4, 19896 and Claimant was dismissed on January 16,
 1989 based on evidencw,ad~luced at that investigation,

    . Dr. Harold Klawans,',whose professional achievements and activities are ,

                          ,

numerous, 'submitted a, sworn statement on behalf of Claimant. that of the 80

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or more components (metabolites) identifiable in marijuana tests, only one
 ' (Delta 1 or Delta9',.:depending on-thenomenclature used)' produces·"central ~, .

 effects." D r.!'IC.lawanSt,s,,tated th'is,:!Fomponent.[ias a behaviorpl;;2ffect on' the
                                                      '·:~'~n. ..'"',~·''~·4


brain,of fairly short duration and is then distributed throughout the body,
 from which it is eliminated over A.p'eriod of from three to siM weeks. .Dr. _'- ' -
 Klawans further'eaplainqd that the q'ompbnents usually found in urine have no ' ",T;

 adverse behavioral effect. _ - '- -
                                          3,53o-l.0~ ., , I ,,, .

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    The issue to be decided in this dispute is whether Claimant was


dismissed for just cause under the Agreement; and if not, what should the -

 remedy be. -
 i

 The position of the Organization is that Claimant was unjustly -
 dismissed both as to the merits o£ the case and,as,to matters of procedure.

 .On the merits, the Organization contends that the Carrier failed to carry its burden of prqpf,in that,no' Carrier witnes's at the investigation,,,, could fully explain Cla'imant's urinalysis results,. Based on Dr. Klawans' statement, the Organization contends'further that Claimant's urinalysis

 should not be'persuas,ive evidence'against Claimant because it tests for

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components of marijuana that do not adversely influence behavior. The

 Organization also questions the'reltiability of the urinalysis in light of,

 the-tact that!`,it'wastefreormedti·ia, laboratbpy in thq,carrier"s employ, and ."_, I,'''. '·-~.c

 that ,some laboratories have had difficulty maintaining the integrity of

 their testing methods·and chain o f.custody. r _ . .-.

 On the questions of procedure, the Organization contends that the Carrier's statements'of drug policy (February 12 and August 1_ 1985) deny an employee's right to Sue-'process because they permit drug"testing without probable 'cause. The Organization maintains that the policy statements , changed the Carrier's long-standing practice·of basing its. determinations of drug or alcohol'use solely on human observation of impairment..

 The position of Carrier is that, Claimant was dism~,ssed for just cause- -,,-

 under the Agreement. --
    Carrier maintains. that its 19·85 policy statements, were intended to '~ ~~;


promote safe railway operations. The Carrier contends further that it has a

 well-established unilateral right to set standards. and policies which _ .~_ ",
 constitute working conditions of employment. The Carrier asserts that it,
 has the specific right to require employees to keep their systems free of

 prohibited substances.,

 On the merits, the Carrier maintains that Claimant clearly tested positive for prohibited drugs both in 1987 and in 1988. By doing so at the

 1988 retest, Claimant was in violation of the drug policy and Dr. Ford's.
 specific instructions of June 1987. The Carrier contends that dismissal is ,
 warrented in light of Claimant's failure to comply with the'policy and
 instructions, as wel~ as the seriopsness of a_ pervasive drug problem.

 After review of the entire record, the Board finds that the dismissal of Claimant,was fox just cause.-__ ,

 i The Carrier has,;.sustained its burden, of showing, that substantive credible'e~dencg;csted in,'t4e· record ,that Claimant'violated the qarrie'r'$ ' drug policy and Dr. Ford's specific instructions:· Both the policy and Dr. Ford's instructions were lawful and well within the Carrier's right" unilaterally'to formulate rules ;and policies dea~ing'with,maintaining a safe. work environment and providing a safe transportation system for the public.

 In light to the seriousness 'of drug and alcohol abuse, .especially in the, transportation industries, the Carrier has establiqhed°and enforced. reasonable safety rules and properly required Claimant_to abide by them. He
 3s3o - i o tP

 failed odt e.'~foTced its;. rules'Without pYejudice,

 caprice or discrimination.

 Therp'waS po probative evidanae'presented-to support the Organization's

 allegations that the urinalysis was faulty as to accuracy or identification.

 Ald

 Claim denied.

 Date;

 Neutr Member

 Carrier Member

 Organization Member