PUBLIC LAW BOARD NO. 4615
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BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES
"Organization" Case No. 16
VS.
Award No. 16
CONSOLIDATED RAIL CORPORATION
"Carrier"
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STATEMENT OF CLAIM
Claim of the Pennsylvania Federation, BMWE that:
(1) Holding Mr. J. Skraban, Jr. 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 26, 1987, was without just and
sufficient cause, arbitrary, capricious, on the basis
of unproven allegations and in violation of the
Agreement (System File CR-3230).
(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 3, 1987 and May 19, 1987 inclusive and
his record shall be cleansed of any drug related
offenses.
OPINION OF THE BOARD
Claimant, J. Skraban, was a Welder Foreman. 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
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26, 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. 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. The Medical Director further advised that if Claimant
entered a counselor-approved educational or treatment program,
the time period for providing a negative urine sample 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 19,
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
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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 this 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 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 as he provided a negative
sample within 45 days or referred to the employee counselor.
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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.
F. . ZAISKI J. ODD
C ier Memo O nization member
S. E. BUCHHEIT
Neutral Member
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