Brotherhood of Maintenance of )
 Way Employees )
 Case No. 14
 and ) Award No. 14
 Norfolk and Western Railway )
 Company (Lake Region) )

        "Claim of the System Committee of the Brotherhood that:


            (1) The Carrier's decision to withhold from service Extra Gang Laborer Leanel Jones for allegedly testing positive for marijuana was without just and sufficient cause and unsubstantiated. [Organization File MW-BVE-101


            (2) Extra Gang Laborer LeanelJones shall.be reinstated to service and compensated for all wage loss suffered."


                    OPINION OF THE BOARD

Claimant was employed as an Extra Gang Laborer in
 furlough status just prior to the events leading up to this -
 dispute. On March 28, 1985, Claimant was recalled from furlough
 and underwent the usual return-to-duty physical examination which
 included a drug screen urinalysis. On April 11, 1985, the
 results of the drug test were received from the National Health
                              . . . 3`1.5--__l.~ .


        Laboratories of_ Vienna. VA. The results were "POS/87" and "POSITIVE" for marijuana. Carrier's System Medical Director; in accordance with Carrier's medical policy, thereupon advised Claimants' supervisor that Claimant was to ". .- be held out of - .. service."

        Claimant was then promptly notified of the Carrier's policy that he was being afforded two opportunities for retesting at a time of his own choosing. He was advised that if either retest was negative, he would be permitted to return to service. Claimant was also advised that if he_felt_a possible physical or --psychological dependency on marijuana or other drugs, he should contact an employee counselor for help.

        On his own initiative, Claimant took a second test using Carrier's medical facility on April 26, 1985. The result from -


        the same laboratory was "POS/63" and "POSITIVE" for marijuana. . -

        On October 2, 1985, Claimant underwent a third test in the manner already described which proved negative for marijuana or other drugs. Shortly after receipt of that result, Claimant was advised by Carrier that he could return to work, although a personal injury and a further furlough postponed his actual

        return until May 5, 1986. -

        The basis for this grievance is Claimant's insistence -

        that the test results of March 28 and April 26 were inaccurate in

        light of two additional drug screen urinalyses conducted on April

        16 and April 25, 1985 by John R. Meranda, M.D., Claimant's

        private physician, utilizing the laborato-ry of- the St. Anthony

        Hospital. Those two tests showed negative for marijuana.


' - 2 -
        The issue here is not one of discipline but whether


Carrier is entitled to rely on the medical findings and -
 conclusions of its own staff, including third-party scientific
 consultants of its choice, in the face of contradictory findings
 and conclusions of an unrelated third party. The answer must be
 in the affirmative especially when, as here, the necessity for
 continuous custody of the sample tested is essential to deriving
 an accurate and reliable result and the sophistication of the
 testing methods required may be beyond the capability of

 laboratories which do not have specialized expertise. -`
 There has been no suggestion here that Carrier's drug policy, of which it is justifiably proud, was administered unfairly, improperly or in bad faith.- Indeed, the record shows that Carrier continuously sought Claimant's return to work as

 soon as he was medically qualified to do so; that Carrier was -
 scrupulous in seeking to ensure the accuracy of the testing by
 monitoring custody of the sample throughout and in selecting a -
 laboratory of the highest repute.

        Carrier could not, in the public interest, have -

disregarded a scientifically derived finding that Claimant was
 using drugs which might have impaired his sensory, mental or
 physical functions. Its refusal to permit Claimant to return to
 work was, accordingly, fully justified. Carrier is, however,

 entitled to disregard any contrary finding developed under -
 conditions over which it does not have complete control. Its
 failure to accord weight or significance to the tests conducted
 by Claimant's private physician is, accordingly, of no moment.

                          - 3 -

_ _, . 3~ s:/y,, _


        AWARD


      Claim denied.


E.T. He,bert,·Neutral Member

 W.L. Allman, Jr., Carrier Member D.D. Bartholomay, E oye member

                  Date:,.,1~,~1


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