PUBLIC LAW BOARD NO. 4615
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES
"Organization"
VS.
CONSOLIDATED RAIL CORPORATION
"Carrier"
STATEMENT OF CLAIM
Case No. 14
Award No. 14
Claim of the Pennsylvania Federation, BMWE that:
(1) Holding Mr. W. Abraham out of service for failure
to comply with the Conrail Drug Testing Policy in that
he did not provide a positive urine specimen when he
was tested at his normal return-to-duty physical on
March 27, 1987, was without just and sufficient cause,
arbitrary, capricious, on the basis of unproven
charges and in violation of the Agreement (System File
CR-3225).
(2) As a consequence of the violations referred to in
Part (1) above, the Claimant shall be compensated for
all time lost, including overtime for the period
between April 6, 1987 and May 20, 1987 inclusive and
his record shall be cleansed of any drug related
offenses.
OPINION
OF
THE BOARD
Claimant, W. Abraham, was a Trackman. As is typical with
many employees who occupy like positions, Claimant was
essentially a seasonal employee who would normally be furloughed
for the winter until the following spring.
Claimant was recalled to duty for the 1987 production season
and, as part of his return to duty physical conducted on March
27, 1987, was required to submit a urine sample. Carrier was
subsequently notified by Roche Biomedical- Laboratories, the
company that performs all of Carrier's drug screen urinalysis
work, that Claimant's specimen allegedly tested positive for
cannabinoids.
In accordance with carrier's policy on drugs, Claimant was
medically disqualified from service by letter dated April 2,
1987 from Carrier's Medical Director. Claimant was instructed
therein to provide a negative urine sample within 45 days or by
May 17, 1987. In addition, the Medical Director recommended in
this letter that Claimant contact Carrier's employee counselor
and follow any recommendations that the counselor might make on
Claimant's behalf.
Claimant entered
program, the time
could be extended.
Claimant did not enter the Carrier sponsored treatment
program. Claimant did, however, provide another specimen on May
11, 1987, which tested negative. Accordingly, Carrier qualified
Claimant for return to duty on May 14, 1987 subject to his
remaining free of prohibited drugs as demonstrated in unannounced
periodic follow-up testing. Claimant returned to work on May 20,
1987. He was not compensated for the time period during which he
was withheld from service.
Carrier's drug testing policy, insofar as it is applicable
to this case and all cases now before this Board, was
The Medical Director further advised that if
a counselor-approved educational or treatment
period for providing a negative urine sample
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unilaterally established and set forth in a letter from Carrier's =
Chairman and Chief Executive officer to employees dated February
20, 1987. Carrier's chairman stated therein that "safety is
inconsistent with the use of illegal drugs by any employee,
because such use endangers the welfare and safety of other
employees and the public. Accordingly, Conrail is establishing a
policy on drugs which is an enhancement of our current medical
practice and standards. A summary of that policy is included
with this letter...". The referenced policy summary which was
attached to the letter stated the following:
Conrail will include a screen for drugs when the
following medical examinations are conducted: _
pre-employment physical examinations;
required periodic and return-to-duty physical
examinations;
before return to duty and during a follow-up
period after a disqualification for any
reason associated with drug use: and
executive physical examinations.
An employee with a positive test for illegal drugs
will:
be withheld from service by Health Services:
be required to provide a negative drug test
within 45 days, at a medical facility to
which the employee is referred by Conrail's
Medical Director, in order to be restored to
service. This 45-day period begins with the
date of the letter notifying the employee of
his/her being withheld from service.
An employee whose first test is positive will be
offered the opportunity for an evaluation by Conrail's
Employee Counseling Service.
If the evaluation reveals no addiction
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problem, in order to be returned to service a
negative drug test must be provided within a
45-day period beginning with the date of the
letter notifying the employee of his/her
being withheld from service.
If the evaluation indicates an addiction
problem and the employe enters an approved
treatment program, the employe will be
returned to service upon recommendation of
the treatment program and the Conrail
Employee Counseling Service and must provide
a negative drug test within 125 days of the
date of the initial positive test. This time
period can be extended by Health Services
when warranted.
An employee who fails to comply with the
recommended treatment plan will be required
to provide a negative drug test within the
45-day or 125-day time period referred to
above, whichever is less, in order to be
returned to service.
An employee may be subject to dismissal if he or she:
refuses to submit to drug testing as part of
the physical examination;
fails to provide a negative test within the
45-day or 125-day period referred to above,
whichever applies; or
fails to provide negative drug tests in a
three year follow-up period arranged and
monitored by Health Services.
This policy -applies to agreement and non-agreement
employees subject to required physical examinations.
The Carrier maintains that Claimant was properly withheld
from service pursuant to its drug testing policy. It argues that
Claimant was aware of the policy, that he was found to have
cannabinoids in his system during his return to work physical,
and thereafter he was properly withheld from service until such
time as he provided a negative urine sample. The Carrier further
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argues that its right to withhold Claimant without compensation
in such circumstances is not restricted by law, rule or the
parties' Collective Bargaining Agreement and has in fact been
endorsed by every tribunal which has heard similar cases
involving Carrier, including Public Law Board 3514, which is
comprised of the same Carrier and Organization as this Board.
The organization raises an extraordinary number of arguments
and defenses on behalf of Claimant. In general, the Organization
does not unequivocally oppose drug testing, but rather Carrier's
unilateral implementation of a drug testing program. More
specifically, the Organization contends that Claimant being
withheld from service without compensation was violative of the
law and the parties' Collective Bargaining Agreement.
In Award No. 1, also issued this day, the Board set forth
guidelines concerning how it would consider certain cases arising
under Carrier's drug testing policy. Applying those principles
to
the facts
of this case, the Board finds that the claim must be
denied.
Pursuant to Carrier's policy, Claimant was given a return to
work physical which included a drug screen. The testing
procedures used in this test, and in the subsequent test, were
adequate. Carrier has established that the test results
accurately showed that Claimant had cannabinoids in his system,
and that the presence of that substance was as a result of use by
Claimant rather than any other reason. Carrier acted within its
prerogative by medically disqualifying Claimant until such time
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as he provided a negative sample within 45 days or referred to
the employee counselor. Finally, there are no irregularities or
mitigating factors particular to this case which can be found to
warrant sustaining of the claim. Accordingly, the claim must be
denied.
AWARD
Claim denied.
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'FiMZALSKI J DODD
C er Me r anization Member
S. E. BUCHHEIT
Neutral Member
APR 1 2 1991
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