PART E8 TO DISPUTE
.. STATEMENT OF CLAIM
PUBLIC LAW BOARD NUMBER 3530

 Award Number: 107
 Case Number: 107

 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

 And

 NORFOLK AND WESTERN RAILWAY COMPANY

 Claimant, H.E. Smith, 1435 Abbott St. N.W., Roanoke, VA 24017 was dismidded from service on December 29, 1988 for alleged failure to comply with instructions of the Carrier's Medical Director to keep his system free of prohibited drugs. ,Claim was filed in accordance with
 ,the Railway Laboo'r,Act and agreement provisions. Employer request he be reinstated with pay for all lost time with seniority and vacation rights unimpaired.

 FINDINGS
Claimant entered the Carrier, s.service~an July 17,.,·1981.

 The Carrier instituted a policy on February 12, 1985, modified on

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

 ·w substance would be subject to dismissal unless he or 's he complied with the

 harrier's instructions Lo re test at a Gamier-designated facility within 45 days and provided a negative sample at that time. Employees then testing

 negative would be subject to retesting for three years.

 . On April 12, 1988, the Carrier's Medical Director,,. Dr. G.~W. Ford, advised Claimant that the urine sample, provided on April 7, 1988 as part of
 a return to work physical examination, had tested positive for cocaine-
 f'.

 C1a5mant 'was,'lli~),`d O~t'of .servipe.~pending a negative -sample, which he

 provided.subseqffently. By letter dated May 13, 1988, Dr. Ford advised
 Claimant that he was, eligible,Eo,~return to work. Dr. Ford. also directed
 Claimant, tb, remain:'drug free, advi,sed, him of the provision foci periodic

 retesting for three years and cautioned him that a positive test would

 subject Claimant to dismissal.,

 On November 14, 1988, Claimant produced a urine sample as part of a

 return to work physical, examination. After conducting two tests (enzyme immuno assay technique and gas chromatography/mass spectrometry), it was determined that Claimant tested positive for cocaine.

 By letter dated November 23_,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. That investigation was conducted December 13, 1988; and Claimant was dismissed on December 29, 1988

 based on evidence adduced 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 or more components (metabolites) identifiable in marijuana tests, only one (Delta 1 or Delta 9, depending on the nomenclature,used)produces "central effects." Dr. Klawan's stated this component has a behavioral effect on the brain of fairly short ~duration and is then distributed throughout the body, from which it is eliminated over a'Oeriod of from three to six weeks. Dr. Klawans further explained that the components usually found in urine have no

 adverse behavioral effect.
 35vo X07
 ,fig 3

 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.

The position bf.the Organization is that Claimant was unjustly

,dismissed both as; to the merits of the case and as*to;matters, of procedure.


,' On the merits,'tlxe 'Organ i'zatf on contends that the Carrier failed to carry its burden of proof in that no Carrier`witness at the investigation could fully explain:C,laimant's urinalysis .results. , Based on Dr. Klawans' statement, the Organization contends further that Claimant's urinalysis

 should not be persuasive,evidence against Claimant~because it'tests for components- of marijuana that do' not adversely influence,,behavior. The. Organization, also questions the refiabiliCy of the urinalysis in light of the fact that it was performed by a laboratory in the Carrier"s employ and that some laboratories have had difficulty maintaining the integrity of their testing methods and chain of custody..

 On the questions of procedure~,,~the Organization conteildsthat the,, Carrier's statements of drug policy (February 12 and August 1, 1985) deny an employee's right to due 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 dismissed for just cause

3530 -/07




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 unila~t~eral right to set standards and policies which

 ·

 constitute w'orking,conditions of employment.

 the Carrier asserts

 has.thespecific right to require employees to keep their systems

 prohibited substance s

 that it

 free of

 On the merits, the Carrier maintains that Claimant clearly tested positive fox prohibited drugs both in April and November 1988., .By doing so at the November retelst, Claimant wa~ in violaLion,'ef the, drug' policy and Dr',. Ford's specific.instxuctions of May 1988. The Carrier contends that dismissal is warranted in light of Claimant's failure to comply with, the

 policy and. instructions, as well as, the seriousness of,,a~pervasive drug problem.

 After review o£ the entire record,, the Board finds that the dismiss a'. of Claimant was for just cause.

 The Carrier has sustained its burden,ofshowing that substantive, credible evidence existed in the record that Claimant violated the Carrier's drug policy and Dr.'.Ford's specific instructions. Both- the policy and Dr. Ford's instructions were lawful and well within the Carrier's unilateral
 right to formulate rules and policies dealing 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, established and enforced
 reasonable safety rule's and prpperly required Claimant to abide by them. He,., '' .'''

 failed to !do so and''the Carrier enforced its rules without prejudice, caprice or discrimination.

 I.4'

 There was no probative evidence presented to support the Organization's''

 allegations that the urinalysis wgs faulty as to accuracy or identification. .
AWAU




                              Carrier Member t


                              Organization Member


i i