PVC LAW HOARD No. 4381: CASE No. 31
BR OM'RSOOD OF MINTENANCE OF MY EMPIDM4
AND

 BURIINGILk1 NOFdHERN RAIIFOAD MANY



2. The Claimant shall be reinstated with seniority and other
 benefits unimpaired and he shall be compensated for all wage
 loss suffered and he shall. be allowed all other benefits to
 which he would be entitled if he had not been n dismissed
 including tut not limited to health and welfare, q_alification
 for vacation, personal. leave days, lump sum bonus and back pay
 qualif ications.

On August 28, 1986, the Claimant, Mr. Randy S. Nolan was operating a Pettibone speed swing which overturned while under his responsibility. Mr. Nolan was taken to an area hospital for medical. attention. w-, i e at the hospital, Mr. Nolan signed an authorization statement for the collection of urine and blood samples to be used for tests for drug abuse. On September 11, 1986, the Carrier received notice of the test results, which shared positive for carmabinoids. An investigative hearing was initially scheduled by the Carrier for September 79th, but rescheduled to October 27th at Mr. Nolan's request. At the hue, Mr. Nolan admitted that he had used marijuana ". . a week or ttvwo weeks .. " prior to August 28th (the day of the accident). Mr. Nolan testified that he did not use marijuana during work on August 28th.

 Mr. Nolan was subsequently dismiss from employment with the Carrier for violation of Rule G. Folly his dismissal, bir. Nolan enrolled in the Caster's EMployee Assistance Program. Upon successful c=pletion of the program, his E.A.P. counselor rn3ed that Mr. Nolan be returned to service with a probation period.

 The Carrier c ontends that the claim in this matter is mart because when Mr: Nolan agreed to the E.A:P. probationary reinstatement he also agreed to waive any claim resulting from the alleged violation of rule G. On this threshold issue ... does the waiver signed by Mr. Nolan bar the organization fry appealing the'claim ... we must decide in favor o;E the Orgdni2aticn. The Organization has the right and the duty to police the Agreements to which it is a party. The Organization must assure that

i*rii settlements do not adversely affect collective rights. It is not sufficient that Mr. Nolan discussed signing the waiver with the Organization. The organization, as the collective representative, must
 retain the right to pursue the matter if it believes Mr. Nolan's waiver.
 of rights is improper. The duties associated with fair representation
 dire the organization to consider and to revile individual and
 collective interests. There is no evidence in this case that the
 Organization acted in an arbitrary or capricious or discriminatory manner
 by dec iding to go forward with the appeal..

 We also find that the investigative hearing was initially scheduled to be held within the time limits specified by Pule 40A. Although the accident . took place on August 28th, the Carrier did not receive the test results report until September 11th. The Carrier properly acted within the fifteen (15) days, starting on September 11th.

 We must now address the central issue of this case ... has the Carrier sustained its burden of proving that Mr. Nolan violated rule G on August 28, 1986? The issue can be stated even more succinctly ... should a violation of Rae G (i.e., that Mr. Nolan was under the influence of marijuana) be based solely on the results of an urinalysis test?..

 In reaching a decision in this matter, we accept the Organization's contention that the composition of Rule G, in effect prior to March 1, 7986 and s,bseq,Pn+ to February 1, 7987, should be used. The Carrier rescind the ccmpositiom of Rule G under which Mr. Nolan was disciplined. The applicable Rule G states:





Evidence of drug abuse in this matter is clear. Mr. Nolan acknowledged using marijuana away front the workplace, and following the accident, his drug screen was positive for canmabinoids, 152 narmograms per milliliter. The language of Rule G states in part, "Employees must not report for duty under the influence of . . marijuana .. " Mr. Nolan was not drug free, therefore, he was under the influence of a prohibited drug.

 The degree of impairment from drug use is determined by a host of
 interacting factors, such as rscency of use, frequency of use, absorption.
 rates, etc. The OrTa n=ticn argues that the urinalysis tests are not
 capable of correlating physiological and psychological effects of
 mari juana with levels of urinary metabolites reported in the tests.
 Nevertheless, as long as marijuana or its metabolites are present in the
 body, they are affect-im the delicate relationships between the brain and

Wiles, and anyone under this influence is a risk to himself/herself and others. It is irrelevant, as in this case, that a person does riot outwardly show behavior modifications (the "high"). Sripntific evidence has conclusively established that the inpainmts produced by drugs
 liner lcag after the acute phase has passed. .-

 lhile G does not provide for degrees of influence or . Any degree of influence is influence, and therefore is prohibited by Rule G. Until it is established that certain levels of drugs in the body do not pose safety risks, co-workers, the public and the carrier are entitled to eat that persons at work are drug free.

 Mr. Nolan was aware of the Carrier's drug abuse policy, yet he acted in a manner to violate that policy. The Carrier has sustained its burden of proving that Mr. Nolan violated Rile G.

        Claim denied.


Ronald L. Miller
 Chairman and Neutral Member

L~Uce

Maxine Tjmbarman Biuce G. Glover
 Carrier jar a-q~-ticzi Member

                          n~g


                Date


DISSENT: See Attached.
                                                  433f -3/


ORGANIZATION'S DISSENT TO CASE 31 OF

PUBLIC LAW BOARD 4381


    The Organization respectfully but firmly dissents from the findings of

this Board with respect to: ' -

 1. Time limits specified in Rule 40 of the Collective Bargaining Agreement.

    2. Definition of Rule G.


1. It is undisputed that the date of the occurrence givin4 rise to the suspicion of violation of Rule G was August 28, 1986, with initial hearing scheduled for September 19, 1986. The fifteen (15) day time limit for the holding of a herring is clearly set forth in Rule 40 of the Collective Bargaining Agreement. The interpretation of this language has been considered on numerous occasions by arbitrarial forums. The parties must follow the time lines outlined in an agreement. The findings of this Board concerning these time limits seriously departs from numerous precedential awards between the parties.


2. The findings of this Board concerning standards of proof of violation of Rule G again seriously depart from a series of precedential awards between these same parties. (SBA 925, Cases 22, 30 and 32, and &VE-NRPC SBA 986, Case 32). These awards were set out in the Organization's submission to this Board which have held that the Carrier has the burden of proof of showing that the residue or substance found in urinalysis testing was influenci the employee's behavior at the time of the probable cause whic a to the urinalysis test. The record of investigation establishes that the Claimant exhibited no behavior which would indicate he was under the influence of

marijuana on the date of the incident. We submit that this award is in error -
 because of this Board's findings relative to scientific and medical theory
 wherein it suggests "As long as marijuana or its metabolites are present in
 the body, they are affecting the delicate relationships between the brain and
 muscles...". This award is seriously erred wherein the Board suggests that
 "Scientific evidence has conclusively established that the impairments
 produced by drugs linger long after the acute phase has passed." Clearly
 there is no evidence of record or for that matter scientific or medical
 evidence to support this Board's finding that same has been "conclusively
 established". Instead: under the line of precedential awards mentioned
 earlier, the Carrier is required to demonstrate -not only the presence of
 "residue" but that such "residue" had some influence on the employee's
 behavior. The Carrier's testing policy and procedures are specifically
 designed to produce evidence to meet this standard of proof established by
 precedential prior arbitrarial forums.

For the above cited reasons, the Organization respectfully submits this award departs radically from arbitrarial precedents between the parties and the reasoning applied in the award is faulty. Therefore, I dissent.


                                Bruce G. Glover

                                Organization Member