PUBLIC LAW BOARD NUMBER 3530
- Award Number: 113.

PARTIES TO DISPUTE f ',



              NORFOLK .AND WESTERN RAILWAY COMPANY ' i,


STATEMENT OF CLAIM
    Claimant, D.A. Ratliff, 2527 Dock's Creek Rd., Kenova, WV 25530 was

- taken out of service for alleged failure to keep his system free of -
    prohibited substances (marijuana). Claim was filed in accordance with

    the Railway Labor Act and agreement provisions. Employes request he be .

    reinstated with pay for all lost time with seniority and vacation

    rights unimpaired. -


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FINDiNGS
 Claimant entered thg Carrier's service on October ?0, 1978.
 The Carrier instituted a policy on February 12, 1985-under which,any
 employee besting pd$itiyg for a`~`controlled substance,'would be removed from . ~ ·

 service untilr'he,qr,lsd7e'8nmpliedlwath.the Carrier's in s~tructions'to retest ',i,,

 at a ,Carrier-designated facility within 45 days,and,provided a negative

 sample at that.time.

 On April 29,.1985, Claimant underwent a physical examination in
 connection with his promotion to foreman. At that time, his urine sample ,, ;
 tested positive for marijuana and lie 'was withheld from. service. On June 25; .' . , '' ' . '
 1985, Claimant was tested again and the results were negative for prohibited ' .
 drugs. Claimant returned to service on July 2, 1985.'
    On August 1, 1985, the policy was modified and it further provided that ' ~~


employees testing negative within 45' days who were returned to duty would be r,,,--,

 subject to retesting for three years to- be= certain ·the ,employ`ees were ; ~·,U
                                                      · ''S'~j, ~:;


keeping their systems free of prohibited drugs. A subsequent positive test would subject the employee to dismissal. 'The~policy was posted, mailed to-': . ,' `" .,!;'a',
employees and included in Carrier publications. ; -. .
                            ,


    By letter dated 'January 17, 1986, Claimant was advised to keep his'


system drug free, reminded of the follow up testing provisions and cautioned ,_ ~- ,

 that a subsequent positive test would subject him to dismissal. -
By letter dated June 20, 1988, Claimant was directed to submit a follow up urine sample. On July 11, 1988, Claimant was retested and the analysis - showed that he was positive for marijuana. On July 15, 1988, Claimant was
held out of service and notified to attend a formal investigation on charges _,
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that he failed to comply with the instructions in the January 1986 letter. -
The investigation was rescheduled and, eventually held on September 23, 1988. -
    At the investigation, the issue of the retest period was raised.


Although Claimant was notified of the retest within the, 3 year period (July
                                                        2, 1985 to 1988), hg was not tested until 9-days after the three. year i period. -On October 5, 1988, the Carrier, therefore, stated that it would


not, impose discipline, despite'the evidence of marij,iiana use.-'- which .was a'

 violation of,'its.'dru'g;, olicy and letter of..,instruction~ regarding remaining
drug free. Instead, the Carrier directed Claimant to submit a negative _
sample in 10 days in-order to return to work. - .','
 On October 18, 1988, Claimant submitted a diluted sample. On October 28, 1988, he tested positive for marijuana. On December 21, 1988, Claimant submitted a negative,sample and was-Yeturned to work.

    In relevant part, Rule 30 provides: `-


If the charge against the employee is not sustained it shall be striken from the record and '.employee reinstated and paidfor the assioned working
 hours actually lost, less the amount earned from time of suspension until i
 reinstated.

 ,,. The O'r4,anizaCiori:cpmmence'd,this claim on Octoberi27, 1988,- seeking back.,
      · . ,: i ~' · ·.,. · __ ,,. .;i,, ,


pay for time~out of service from July 15 to October 5, 19881 and the clearing -

 of these charges from Claimant',s record.

 The issue to be decided in this dispute is whether the Carrier violated

 Rule 30;-and if so, what should,the .remedy be.

 The position of the Organization is that the Carrier has violated Rule 30 because no discipline was assessed as a result of the formal investiga-

 tion on September 23,, 1988. The Organization argues that in~consideration,
 i. , of this issue, only the limited time period of July to October 1988 should be.examined. Finally, the Organization contends that 'the Carrier caiinot - argue the fact that claimant is not entitled to these benefits'-..'. ,i, , ,

 The position of, -the Carrier is that it has not violated Rule 30.', The

 Carrier maintains that it has the right and obligation to protect employees and the public from employees impaired by prohibited drugs. To that end, the Carrier contends, it has established and enforces a drug policy, which
 has been upheld numerous times. The Carrier contends that Claimant knew of its drug policy and his own specific instructions to stay drug free. Nevertheless, Claimant did not remain drug free, as his several positive urinalyses prove. The Carrier maintains it had every right to dismiss Claimant in 1988, but did not do so only because of the question as to theretesting outside the three year period.

 After review of the entire record, the Board finds that the Carrier did not violate Rule 30.

 ' The OrgAnizatiomhas failed to sustain its burden of proving that evidence in the. record supports the finding of a violation of this rule. Quite the contrary is,,so. This c,aseis simply one of a leniency reinstatement of a guilty employee. There is'no question that the substantive

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,credible evidence in the record proves Claimant repeatedly used marijuana in
 vidlation.of,.thp'G~,rr'1er's drqg policy, the specific' ]etter'of instrtACtiori, ' . ,'
 to 'him, cdmmbnsense 'and, data= ~say, common decency, 'Each instance of

 drug use provided adequate basis'for dismissal under the drug policy and
 Carrier rples, both ,of,which'have been fo'u'nd reasonable and enforceable by
 numerous awards. For Claimant to suggest that he- is entitled to back

 pay for some sort of wrongful treatment, when in_fact, the Carrier returned

 him to service only, :after bending, over backwards on the question of the

 timing of the retest.is a display'of arrogance. The Gamier has been more
 that reasonable in the enforcement of its rules and, drug policy.

 AWARD
 Claim denied.

 Date: ~B. G"Z, /1?/O

 Carrier Member`
 i/
 Organization Member