PARTIES TO DISPUTE
STATEMENT OF CLAIt
PUBLIC LAW BOARD N0. 3530

 Award Number: 88
 Case Number:, 88

 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

 AND

 NORFOLK AND WESTERN RAILWAY COMPANY

 Claimant M. S. Queensberry, P. 0. Box 68, Meherrin, VA 23954, was dismissed from service on April 30, 1987 for alleged positive results for marijuana. Claim was filed in accordance with Railway Labor Act and other 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 May 12, 1980.

 The Cagier -instituted a pol~.'cy on February 12, . 19185,, 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
 3s3c? :88

 established the Drug and Alcohol Rehabilitation Service program to assist its employes.

 In May 1985, Claimant tested positive for marijuana during a return-to= work physical examination. Ha was held out of service until July when a negative urine-sample, was submitted. Claimant was returned to work thereafter, and in so doing, Dr. George Ford, the Carrier's Medical Director, instructed Claimant by letter dated January 30, 1986 to remain free of prohibited drugs. Dr. Ford advised Claimant that he would be subject to periodic re testing for three years "to demonstrate that you are no longer using marijuana or other prohibited drugs." If he tested positive for drugs in the future, Claimant would be subject to dismissal.

 Pursuant to his letter of January 30, 1986, on April 24, 1987, Dr. Ford directed Claimant to submit a urine,sample for a follow-up urinalysis. Claimant's sample tested positive for marijuana.

 By letter dated May'6, 1987, 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. , The formal investi,gati.on was conducted on May 21, 1987,.,'and Claimant was dismissed based on evidence adduced rat the investigation by letter dated June 8, 1987.

 Dr. Haroldl. 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 duratibn,and is then distributed throughout.the body from which

it, is eliminated over.'.a period bf'time from three''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 i£ 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 contends that the Carrier's uri

 should not be persuasive and is invalid because it tests for components of marijuana that do not influence behavior. The Organization also suggests that the results produced by a drug testing laboratory in the employ of the Carrier are suspect and that some drug testing laboratories have had difficulty maintaining the integrity of their testing methods and of their chain of custody.

 nalysis
 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 Organize'"' '1.u;~ ,.~ tion 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.
promote safe railway operations. The Carrier maintains that it has a well
 settled 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
 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 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, instructiqns, the%Carrier contei'ds that its punishment was warranted'by Claimant's actions.
                                    ' 3.53o-gg ,

After review of the entire record, 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 than he did not and,that the Carrier enforced its rules without

            i .,


being arbitrary, capricious or' discriminatory.

 The Organization has presented no evidence to support its veiled allegations that the urinalysis was either inaccurate or misidentified. Nor has it proven that there is any' reasonable question of the veracity of the , urinalysis based on the laboratory's receiving payment from the Carrier. While any of these defects might afflict some drug tests,'none is present in this instance.
                                  X30-s~


AWARD
    Claim denied.


                              Neutral Member


                                .Tier Member


                              ~n~.rrt. ` -

                              Organi ation Mem er


Date: I,./uNe ,z, X989 ,

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