PARTIES TO DISPUTE
i
 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES




STATEMENT OF CLAIM
    Claimant J. P. Smith, P. 0. Box 84, Huddleston, VA 24104, was dismissed from service on November 5, 1986 for alleged test being positive for marijuana. Claim was filed by the Employes in accordance with Railway Labor Act and agreement provisions. Employes request reinstatement with pay for all lost time with vacation and seniority rights unimpaired.


FINDINGS
    Claimant entered the Carrier's service on August 13, 1973.


The Carrier instituted a policy on February 12, 1985, modified on August 1, 1985, by which any employe testing positive for a prohibited substance would be subject to dismissal unless he/she complied with the Carrier's instructions'to retest at a Carrier-designated facility within 45. days and provided a negative sample at that time. Employes then testing negatively would be subject to retests for three years. The Carrier also
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established the Drug and Alcohol Rehabilitation Service program to assist its employes..

 In December 1984, Claimant tested positive for marijuana during a return-to-work physical examination. He was held out of service until early January 1985, when he submitted a'hegative urine sample. Claimant was then returned to work after receiving a letter from the Carrier's Medical Director Dr. George Ford. In his letter dated January 24, 1986, Dr. Ford instructed. Claimant to remain free of prohibited drugs. Dr. Ford further advised Claimant that in keeping with the Carrier's policy, Claimant would be subject to periodic retesting during the next three years "to demonstrate' that you are no longer using marijuana or other prohibited drugs." If he tested positive in the future, Claimant was advised and he understood, he would be subject to dismissal.

 As part of the periodic retesting process, Dr. Ford directed Claimant to submit a urine sample for a follow-up urinalysis on April 7, 1986. Claimant had not exhibited any abnormal behavior that day nor had he had any apparent problems in performing his assignments. Claimant's sample tested positive. Claimant, on his own, had a urine sample tested by a non-Carrier designated laboratory. on April 22, 1986 and that test was negative for marijuana.

 By letter dated April 25, 1986, Claimant was directed to attend a formal investigation on charges that he failed to comply with Dr. Ford's instructions to remain drug free. and with the Carrier's policy regarding
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drug use. At the formal investigation on October 22, 1986, evidence was adduced which led to Claimant's dismissal by letter dated November 7, 1986.

 Dr. Harold L. Klawans, whose professional achievements and activities are numerous, submitted a sworn statement on behalf of Claimant that of the 80 or more components identifiable in marijuana tests, only one (Delta 1 or Delta 9, depending on the nomenclature used) produces "central effects." Dr. Klawans 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.ovep a period ~of.time from three to six weeks. Dr. Klawans
 further explained that.t6e compoiiep'ts usually found in'urine have no
 behavioral effect.

 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 of the Organization is that Claimant was dismissed without

just cause both as to the merits,of the case and as to, matters of procedure.-
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    On the merits, the Organization maintains that the Carrier failed to .


carry its burden of proof because none of its witnesses at the investigation .," '

 could explain the results of Claimant's urinalysis and no one had observed ., ,,-' ','.,r`
 Claimant acting as if he were under the influence of drugs or alcohol on
 April 7, 1986. On the basis of Dr. Klawans' statement, the Organization
 contends that the Carrier's urinalysis should not be persuasive and is

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invalid because it tests for components of marijuana that do not influence behavior. The. Organization challenges the accuracy of the Carrier's
 urinalysis because it questions,the chain of custody at the laboratory and asserts that Claimant's subsequent negative urinalysis raises a reasonable doubt alto the testing,proce¢ures..

 On the questions of procedure, the Organization maintains that the Carrier's February 9-and August 1,'1985 policy statements deny due process

 because they allow drug testing without probable cause.' Also, the Organiza
 lion asserts 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 the Carrier is that Claimant was dismissed for just cause under the Agreement.

 The Carrier contends that its 1985 policy statements ,are intended,to promote safe railway operations. The Carrier maintains that it has a wellsettled right to set standards and establish policies. Standards and
 policies are conditions o£ employment unilaterally applied in practice and the Carrier maintains that they are outside the collective bargaining

 process.

 As to Claimant, the Carrier maintains that he clearly tested positive for marijuana as shown by two separate tests using different methodologies. By testing positive, Claimant violated the Carrier's drug policy. Further,
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 the Carrier contends,.that Claimant:did not comply with Dr. Ford's instructions which were issued pursuant to lawful rules and standards. In light of the seriousness,of the'drug problem and Claimant's failure to comply with instructions, the 'Carrier contends.that its punishment was warranted by Claimant's actions.

 After ~review oF,;the entirg;'.;e cord, the Board finds, that dismissal of Claimant was for just cause under the Agreement.

 The Carrier has established through substantial, credible evidence on the record that Claimant violated the Carrier's lawful drug policy. Moreover, Claimant also failed to follow the instructions of,the Carrier's Medical Director by not submitting a negative urine sample'during a periodic retest. The Carrier. has a well-settled right to formulate policy and rules, especially those which deal with its obligation to provide for the safety of employes and the public. The scourge of substance abuse is. particularly evident in the transportation industries, and public safety demands that rules on,drug and alcohol use be, established and enforced. The Carrier has lawful and reasonable rules and instructed Claimant to abide by them. The,'
 evidence is that he, did not, and that the Carrier enforced its rules without being arbitrary, capricious or discriminatory.

 The Organization has presented no evidence to support its allegations that the Carrier-directed urinalysis was either inaccurate or misidentified. There is no substantial credible evidence in the record that Claimant's independent re test results proved he was drug free on April 7, 1986 as he
 was required.

 AWARD
Claim denied.

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