(1) Holding Mr. R. Mindler 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 April 7, 1987, was without just and sufficient cause, arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File CR-3229).
(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 13, 1987 and May 25, 1987 inclusive and his record shall be cleansed of any drug related offenses.
Claimant, R. Mindler, 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
31, 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 7, 1987 from Carrier's Medical Director. Claimant was instructed therein to provide a negative urine sample within 45 days or by May 22, 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 mike on
program, the time could be extended.
Claimant did not enter the carrier sponsored treatment program. Claimant did, however, provide another specimen on May 15, 1987, which tested negative. Accordingly, Carrier qualified Claimant for return to duty on May 19, 1987 subject to his remaining free of prohibited drugs as demonstrated in unannounced periodic follow-up testing. Claimant returned to work on May 27, 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 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
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 bf the law and the parties' Collective Bargaining Agreement. It asserts that Carrier has not established that a positive drug test, without proof of impairment, makes an employee medically disqualified from service.
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