PARTIES TO'DISPUTE
STATEMENT OF' CLAIM
PUBLIC LAW BOARD NO. 3530
Award Number: 87
Case Number:. 87
BROTHERHOOD OF~MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK AND WESTERN RAILWAY COMPANY,'
Claimant, D. L. Bush, 415 Washington Avenue, 541, Roanoke, VA '
24016, was dismissed from service on April 15, 1986 for alleged
positive results for marijuana. Claim was handled in accordance
with Railway Labor Act and agreement provisions. Employes request
he be reinstated with pay for. all lost time with vacation and
seniority rights unimpaired. i
FINDINGS
Claimant entered the Carrier's service on June 19, 1981.
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 or she complied with the
Carrier's instructions to retest at a Carrier-designated facility within 45
days and provide a negative sample at that time. Employes then testing
negatively would be subject to retests for three years. The Carrier also
established the Drug and Alcohol Rehabilitation Service,program to assist
its employes.,
On January 7, 1985, Claimant tested positive for marijuana during a
return-to-work physical examination. He was held out of service until March
6, 1985, when he submitted a negative urine sample. Claimant then returned
to work. By letter dated January 13, 1986, the Carrier's Medical Director,
Dr. George Ford, instructed 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 8, 1986.
Claimant had not exhibited any abnormal behavior that day nor had he had any
apparent problems performing his. assignments. Claimant's sample tested
positive for marijuana. Claimant remained in service until April 15, 1986
when the, results of the test were,known. During that period, he had no
apparent diffi'culty$erforming'hiv assignments. Claimant had a urinalysis's
conducted by a non-Carrier designated laboratory on April 10, 1986 which
test was negative for marijuana.
By letter dated April 16, 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
drug use. At the formal investigation on June 19, 1986, evidence was
adduced which led to Claimant's dismissal by letter dated July 3, 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 component's identifiable in marijuana tests; only one (Delta l or
Delta 9, depending on the nomenclature used) produces "central effects."
Dr. Klawans stated that 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 period of from two to six weeks. Dr. Klawans
further explained that. the components 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.
On the merits, the Organization maintains that the Carrier failed to
carry its burden of proof in that none of its witnesses at the investigation
could explain the results of Claimant's urinalysis. The Organization
submitted Dr. Klawans' statement and the Organization'contends that the
Carrier's urinalysis should not be persuasive and is invalid because it
tests for components of marijuana that do not influence behavior. Also, the
Organization ''challenges the accuracy of the Carrier's urinalysis because it
questions the chain of custody at the laboratory. It further asserts that
i I~,
.. n 4I1.
I.l l.
' 3 530 ~'l
Claimant's subsequent negative urinalysis raises a reasonable doubtas to , ,,
the testing procedures, and accuracy.
i
On the questions of procedure, the Organization maintains that the
I
Carrier's February
9
and August 1, 1985 policy statements deny due process
because they allow drug testing without probable cause. Also, the Organization 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 ita,1985 policy statements are intended to
o ;
promote safe railway operations. The Carrier maintains that it has a wellsettled right to set standards and establish policies. Standards and
policies are conditions of employment unilaterally applied in practice, and
the Carrier maintains that they are outside the collective bargaining I'
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,
the Carrier contends that Claimant did not comply with Dr. Ford's instruc-
tions 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
I. !
4 ,
I, ,
I .
instructions, the Carrier contends that its punishment was warranted by
Claimant's actions. The Carrier.rejects the probative value of the
urinalysis pdrfor~meil'independe:''tly by Claimant arguing that the chain of, .
.. . , ,. - . ..
custody was not proven, that the two day delay allowed Claimant's system to
clear and that no'indication'of,the testing method appeared in the test
report.'
After review of the entire record, the Board finds that dismissal of
Claimant was for1just 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 ones 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 substantive credible evidence in the record that Claimant's
independent retest results proved he was drug free on April 8, 1986 as he
was required.
AWED
Claim denied.'
Nicholas H. Zumas neutral Member
arr er Member
organization Memb r