- ' Public Law Board No. 4130
Parties to Dispute
International Brotherhood of Firemen )
and Oilers, System Council No. 6 ) Case No. 2
vs ) Award No. 2
Norfolk and Western Railway Company )
STATEMENT OF CLAIM
1. That in violation of the current Agreement Firemen and
Oiler Devonna M. Thorn was dismissed from all services of
the Norfolk and Western Railway Company on January 24, 1986.
2. That accordingly the Norfolk and Western Railway Company
be ordered to reinstate Devonna M. Thorn to service with
seniority rights, vacation rights, and all other benefits
that are a condition of employment, unimpaired, with compensation for all lost time plus 10% annual interest. That
she be reimbursed for all losses sustained account of loss
of coverage under health and welfare and life insurance
agreements during the time she is held out of service.
FINDINGS
The Claimant has a seniority date with the Carrier of May 1,
1979. She was furloughed on September 1, 1982. In April of 1985
the Claimant was recalled for relief work at the Bluefield, West
Virginia mechanical facility of the Carrier. Pursuant to this recall
the Claimant was given a physical examination and a drug screen
test on April 17, 1985. On May 2, 1985 the Carrier's Medical Director
notified the Claimant that the drug screen urinalysis conducted as
part of her physical was positive. for marijuana. In that letter the
Medical Director also stated the following:
(tlhe company's medical policy forbids the active employment
of persons who are dependent upon or use drugs which may impair sensory, mental, or physical functions. Thus, I cannot
permit you to return to service at this-time.
public Law Board No. 4130 (Award No. 2; Case No. 2)
If you believe you will be able to meet the requirements
of the-company's medical policy, then another specimen of
-° your urine will be tested at your
request. You
must go to
your supervisor when you feel that your body has been cleared
of the drugs and he will give you a physical examination form
to repeat your urine drug test... (y)ou will have only two
opportunities for retesting. You will not be permitted to
return to service-until and unless one of the two retests of
your urine for marijuana and other drugs is negative.
That letter to the Claimant also included a list of Drug and Alcohol
Rehabilitation Service (DARS) counselors to whom employees,of the
Carrier could apply for treatment. Such treatment was free-of charge-.
On August 1, 1985 the Carrier amended its policy relative to
employees who test positive for a prohibited substance during- a physics
examination. The new policy was that an employee was required to
supply the Carrier with a urine sample, free of such substance, within
forty-five (45) days of the letter informing them of the result of the
test, or that they enroll in the DARS program. Accordingly the
Claimant was notified by the Carrier's Medical Director on August
29, 1985 that she had 45 days from that date to supply the Carrier
with a negative urine sample or be subject to dismissal. The Carrier's
Medical Director also advised the Claimant in this letter that:
(i)if you feel that you have a physical or psychological
de
pendency on marijuana or other drugs, I urge you to seek help
from one of our DARS counselors. If the DABS counselor determines that you are
addicted, you
may elect to enter the OARS
program. If you enter the DARS program, you will not be required to provide a negative urine dample until 5 working days
after you complete or leave the DARS program (as condition of
employment). A list giving the names and telephone numbers of
our DABS counselors is enclosed.
On October 9, 1985 the Claimant reported for a re-test. It was positiv4
for marijuana and contained some unknown foreign substance. She then
took retests on October 31, 1985 and November 20, 1985. Both of the
latter tested positive also for marijuana and the October 31, 1985
test also tested positive for some other foreign substance.
H
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-a._..
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Public Law Board
No.
4130 (Award
No.
2; Case
No.
2)
On December 3, 1985 the Claimant was notified to attend an
investigation to determine facts and place responsibility, if any, in
connection with her alleged violation of the Carrier's policy relative
to drug testing. In effect, she was charged with not providing the
company with a negative urine sample within forty-five (45) days of
the Medical Director's notice dated August 29, 1985 and/or absent that,
with not entering the Carrier's DARS program. After request for
postponement by the organization the investigation was held on January
9, 1986. On January 24, 1986 the Claimant was advised that she had beer
found to be in violation of company policy and she was dismissed from
service. This discipline was unsuccessfully appealed by the Organization up to and including the highest Carrier officer designated to
hear such before this case was docketed before this Public Law Board
for final adjudication.
A review of the record before the Board shows that the Claimant
was duly informed of the Carrier's policy with respect to drugs and
that she was unable to furnish a negative urine sample within the
time-frame specified by that policy and that she did not avail herself,
from evidence of record, of the Carrier's OARS' counselors. There is
sufficient substantial evidence of probative value, therefore, to
warrant the conclusion that the Claimant was guilty as charged. Substantial evidence has been defined as such "relevant evidence as a
reasonable mind might accept as adequate to support a conclusion" (Consol. Ed. Co. v Labor Board 305 U.S. 197, 229). On the record taken as
a whole the instant claim cannot be sustained.
~I I3o-a
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public Law Board No. 4130 (Award No. 2; Claim No. 2)
AWARD
Claim denied.
£ war L. Suntrup, Neut a Member
14.1.
0~9,9,rr.~e.R, ,~.
W. L. A man, Jr., carrier Member
Due. ~.An arson, Jr., .;ppoyee Member
Date:
1a ~~.'1(Y G