Case No. 1 Statement of Claim:

(2) Accordingly, the decision should be reversed, Machinist
 Overstreet made whole for all losses, restored to service with
 seniority, rights, and benefits unimpaired, and his service
 record cleared of any reference to the charge.
 Findings:
 Claimant W.R. Overstreet was employed as a machinist by the Carrier, Norfolk and Western Railway Company, at its East End Shop in Rcancke, Virginia: Claimant had ,-l·out fourteen yer:vs' seniority. In December- 1985, Claimant was recalled to service front a furlough and told to report for a physical. examin~ition, including a urinalysis test. :he urinalysis results were positive for marijuana, and Claimant was removed from service on January 3, 1?86. By letter dated January 9, 1986, Claimant was instructed to supply a negative ^a^ple within 45 days or enter Carrier's counseling program. On

 ·abruary 24, 1986, Claimant was notified to attend an investigation
January 9, 1986 addressed ::o you in that you did not provide
 n··antive urinecamole or enter Carrier's D.A. R 3. ~1110,Trjm within
 ._ :aye oz Dr. Ford's January ?, -986 left-..
 %lt·, :, Poct;)ona-rtent, the invest iqat_on was hell Apri_ J, 1.985. .1s ..-

 _s.,.t c; the investigation, C1a:mant was dismissed fro; service.


 The organization subsequently filed a claim on Claimant's behalf, challenging his dismissal.
 The Organization contends that Claimant did not receive a fair and impartial investigation. The organization argues that the record does not contain any probative evidence that supports a finding of guilt; Carrier's case is unjustly based on hearsay. The report that showed a positive result for marijuana was a form letter that did not contain any data or proof to support Carrier's decision to remove Claimant from service. Carrier did not offer any credible evidence to support its finding of guilt. The Organization asserts that the NRAB has held that a guilt finding cannot be based on hearsay.
 The organization also challenges Carrier's use of reports that :sere nor made a part of the record at the investigation. Carrier did not racer. its burden of proof at the investigation, then subsequently ,,ddod Lust reports to support its case. The Organization argues that because only evidence produced at an investigation may be considered, these reports should not be given any weight. In addition, the Organization contends that Claimant was not given an opportunity to face :lis accusers,- specifically, the persons who performed the drug tests. The NRAB repeatedly has held that an accused employee has the right to face his or her accusers. The Organization claims that Carrier denied Claimant this right.
 The organization next charges that Carrier altered Rule G's Historical application when it unilaterally implemented its drug _.olicy :n 1385. Rule G charges historically were based on "probable -:~u:~·_" ;~sui-ing from observation of suspect physical manifestations. :n this case, Carrier had no probable cause to charge Claimant; -aiman·.: was not "under the influence," and the charging officer

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admitted that Claimant was performing competently after return_na from furlough. ?he Organization contends that Carrier is attemot·-,: to use its unilaterally imposed policy and discipline procedure to change rules and working conditions embodied in the controlling agreement. The Organization thus asserts that this attempt violates the Railway Labor Act.
 The organization finally contends that there is no evidence to support Carrier's action in this case. Carrier's decision to discipline Claimant is arbitrary and capricious. The Organization therefore contends that the claim should be sustained.
 The Carrier asserts that Claimant properly was dismissed from service for failing to comply with the instructions of Carrier's 27edical Director. The record establishes that Claimant did not. ,u:»,,it :, ,j:,g:,tive sample within 4S days, as instructed by the Medica'. D?.r^_,;cor; Carrier asserts that Claimant theieforo is guilty as charr>cl. i..;rri·nr fuithcrr argues that failure to comply with Carrier's medical policy governing drugs has been held to be a ais:nissable offense. :n this case, Claimant was duly informed of Carrier's policy, was unable to furnish a negative sample within the - required 45-day period, and did not enter Carrier's DARS program. ^he Carrier asserts that this is substantial evidence in support of a finding of guilt.
      Carrier next asserts that ~mpl·:mentation of its drug policy is

nase·i on Carrier'.. managerial right '.-o set an~l enforce medical
 _-_~r.·:.._ :s '_or __ , em~loy~es, a rijht t;;.;: thi 3o,tra rece Ited-Iy las
 -·~·:n:..·~c. :^.o-nov__ th·>_ federal courts :Lave rcoqni_ed _n3t
 _arrier n ._;:q ?o:_cy _a =eqitimat·e and: necessar ... .

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Carrier also argues that probable cause is irrelevant in this matter because impairment was not at issue. Carrier maintains that claimant was tested pursuant to Carrier's medical standards, and this dispute is based solely on whether Claimant failed or refused to obey the medical Director's instructions. Carrier points out, moreover, that physicians' reports, without supporting test results or other evidence, often are introduced into evidence during investigations; the introduction of test results would not have added to Claimant's case. Carrier also contends that it publicized its drug policy to employees in several ways. Carrier points out that even if Claimant were not acquainted with every aspect of the policy, Claimant admittedly received a summary of the policy from Carrier's physician. Claimant therefore knew both the requirements of the policy and what he was required to do in order to comply.
 Carrier goes on to contend that the negative test submitted by Claimant during the investigation was performed after the.time limit set by Carrier's Medical Director; in addition, the teat was not performed at a medical facility designated by Carrier. Carrier therefore contends that the record supports its finding of guilt.
 Carrier contends that the assessed discipline was justified and reasonable. The record establishes that Claimant received a fair and impartial hearing. Moreover, substantial evidence supports Carrier's finding of guilt; the assessed discipline thus was neither harsh nor excessive. Carrier argues that even if the dismissal is reversed, claimant is not entitled to the requested remedy; a reversal of the iismissal still :means that Claimant was removed from service until he
 ':emonstrates that a is free of the prohibited substance. Carrier therefore con=ends that the claim should be denied in its entirety.
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This Board has reviewed the evidence and testimony in the record; and we find that the Claimant was afforded a fair and impartial hearing, and all of his procedural rights were protected throughout the disciplinary procedure. Hence, the procedural claims of the organization are without ;merit and are hereby denied.
      With respect to the substantive issues, this Board finds that

there is sufficient evidence in the record to support the finding that
 the Claimant was guilty of the offense of failing to comply with the
 Carrier's instructions. When the Claimant was recalled to service s
 from furlough, he was, in accordance with the Carrier's policy,
 ordered to take a physical examination, which included a urinalysis.
 The urinalysis results were positive for marijuana, and the Claimant was
 properly notified, again in accordance with Carrier policy, that he
 must supply a negative urine sample within 45 days or enter thcO =
 Carrier's counseling program. The Claimant brought in a second urinalysis
 within the period, but it was also positive for ;marijuana-. The
 claimant did not enter the Carrier's DAItS counseling program within
 the 45-day period.
 Hence, based upon the above facts, Claimant failed to fulfill the-requirements for returning to work set down by the Carrier, which apply to every employee of the Carrier, including officers. The Claimant was aware of the consequences of h-is noncompliance. Therefore, this Board must find that the Claimant was properly found guilty of -.he charges.
 :ncP .-hi.,- Board f_nds thac a claimant was oroperlu -pun,: .:u__ _ _.. -;.:r-et, .:~ ^,.~xt _-"r.^. :ur attention co -.·:_ a_ir~:r~ ): the

 ._zc:~! _~:e. 7 his :3oar~ will normally not set aside disc:pl:na un!ass
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we find that a carrier acted unreasonably, arbitrarily, or capriciously. In this case, the Claimant was found guilty of a serious offense, which, in most cases, warrants discharge. The action taken by the Carrier in this case was not unreasonable. Hence, the claim must be denied.

 Award:

      Claim denied.


                        Neutrar Member


        carrier Member 0 ani ation Member


Date:_~ttf~y~.?~,~1`-'~J

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