The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon.
On February 25, 1986 Claimant underwent a routine return-toservice physical examination following an absence from work as a result of personal injury. A part of the physical examination included a drug screen urinalysis test. The Claimant tested positive for marijuana. He was therefore withheld from service pursuant to provisions of company policy on such matters which provides for employees to be withheld from service when they test positive for drugs and that employees so withheld from service would have 45 days in which to either elect to enter Carrier's Drug and Alcohol Rehabilitation Program (DARS) or submit a negative retest.
Formal notification of the test results was given to Claimant by letter from Carrier's Medical Director on March 18, 1986. This letter read as follows:
When Claimant failed to be in compliance with instructions contained in the company policy and as otherwise set forth in the above letter from the Medical Director, he was directed to report for formal investigatory hearing by notice of charge dated June 5, 1986. Following the company hearing, which was not held until October 2, 1986 as the result of numerous postponements, Claimant was advised by letter dated October 10, 1986 that he was dismissed from all service of the Carrier.
The transcript of hearing, including Claimant's own statements, support the conclusion that he was knowledgeable of company operating and safety rules against the use of drugs or intoxicants, and of his obligations under carrier's medical policy. He testified that he was aware that when he went to take a return to work physical examination that he would be required to take a drug urinalysis test and to provide a negative result of such test in order to be permitted to return to work. Thus, that Claimant would urge that he had not personally received copy of letters which the Carrier states had been sent to the home address of each of its employees under date of February 12, 1985 and August 1, 1985 regarding the company's medical policy poses an interesting technical question, but does not serve to excuse claimant's personal knowledge of the drug testing program.
Even if it was to be assumed, arguendo, that Claimant had not been personally provided copy of the company policy, the fact remains he was duly informed of the policy and program in the letter he had received by certified mail from Carrier's Medical Director, supra. He offered no challenge, protest, or inquiry regarding such letter and the need to be in compliance with the company policy before he could be returned to service. Instead, Claimant proceeded to follow the dictates of such policy and instructions by offering several urine samples for analysis, albeit they continued to test positive for marijuana.
The two aforementioned Carrier letters to its employees read as follows:
had given had also t_,ited positive for marijuara, he reminded Claimant about the opportunity for participation in the DABS program. The Claimant did not avail himself of such opportunity and in this regard, when asked at the company hearing as to why he did not seek help or assistance from the DARS counselors, the Claimant merely responded: "Because I don't need counseling."
It is clearly evident from testimony adduced at the company hearing that Claimant was afforded opportunity to demonstrate that he was physically fit for his job and free of prohibited drugs, or to have voluntarily entered the DARS program. He failed to do so. He may not now properly maintain that he was drug free; the Carrier tests were invalid: or, a false positive test could have resulted from his use of over-the-counter drugs, i.e., Tylenol 3, ADVIL, and antihistamines, which drugs Claimant says his personal physician had prescribed at that time for arthritis pain. If he had valid reason to controvert the test results and the test control procedures, he should have voiced those beliefs in a timely and appropriate manner.
As the Carrier states in its submission to this Board, drug and alcohol abuse in the railroad industry is a problem of tremendous magnitude and public awareness and concern about this problem is evidenced by the recent promulgation of the Rule for Control of Alcohol and Drug Use in Railroad Operations by the Federal Railroad Administration.
Although the FRA Rule does not have direct application to this situation, it is significant that the ERA, in Subpart B - Prohibitions, 219.101(c), stated:
This Board likewise finds worthy of note the opinion and Order of the United States District Court for the Northern District of Illinois, Eastern Division, in Railway abo Executives Association v. Norfolk and Western Railway (No. 86 C 20646) (January 30, 1987), in denying RLEA's petition for a preliminary injunction to enjoin Carrier's imposition of the drug screen urinalysis as part of its routine medical examinations, and granting Carrier summary judgment on the grounds that the RLEA action involved a "minor dispute" rather than a "major dispute" under the Railway Labor Act. Amongst other things, the court said the following:
any other change- in the battery of tests ubld by N&W in its physical examinations.
Thus, the issue for the court is whether N&W's use of an employee's urine sample to conduct an additional test to determine his fitness for work is arguably based on the contract between the parties. The court finds that the record supports N&W's claim that inclusion of this second component to the standard urinalysis is authorized by the past practices of the parties. The Unions have always accorded N&W complete authority to determine the appropriate tests for its medical examinations. This new test is not such an extreme departure from the prior tests conducted in the course of routine medical examinations that N&W should have to engage in collective bargaining over the issue before it can implement it. Therefore, under the facts of this case, the court concludes that N&W's allegation that the parties' existing agreement permits this new test cannot be characterized as frivolous.
The Unions argue that N&W's addition of the drug screen test to the urinalysis already conducted in the course of a routine medical examination represents a change in the manner in which N&W detects violations of Rule G, the safety rule prohibiting use of drugs by active employees. See supra note 2. They assert that this test is a change in the working conditions because, prior to this time, N&W's detection of Rule G violations was limited to observations by supervisory personnel. The Unions rely principally on a district court case, Brotherhood g1 Locomotive Engineers y~ Burlington Northern Railroad, 620 F. Supp. 163 (D. Mont. 1985), appeal pending, No. 85-4138 (9th Cir. argued July 8, 1986) ('BLE I'), in support of this argument. In BLE .1, the Burlington Northern ('BN') unilaterally imposed a program designed to detect the use of on-duty intoxicants. Prior to May of 1984, BN relied primarily on sensory observations of supervisory personnel to detect Rule G violations. In May of 1984, BN intensified its efforts to detect these violations by adopting a new surveillance-search program based primarily on the use of dogs to detect the presence of drugs. Employees were subjected to 'dog sniffs' on a random basis. Failure to submit to a search after a positive dog sniff resulted in dismissal for violation of Rule G. BLE 1, 620 F. Supp. at 166-67.
The District Court held that BN's adoption of the policy was a major dispute, and enjoined BN from enforcing the policy. It rejected BN'S argument that methods of enforcing Rule G were not subject to the collective bargaining agreement . . . It found that addition of the dog sniff test changed the working relationship of the
Carrier testing proceaure is a proper and reasonable exercise of rights in an employee-employer relationship in providing for the safe conduct of business, and that the Carrier had just cause to dismiss claimant for his failure to be in compliance with those rules and instructions that prohibit active employment of those who depend upon or use drugs which may impair sensory, mental or physical functions.