PUBLIC LAW BOARD NO. 4615
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BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES
"Organization" Case No. 20
VS.
Award No.
20
CONSOLIDATED RAIL CORPORATION
"Carrier"
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STATEMENT OF CLAIM
Claim of the Pennsylvania Federation, BMWE that:
(1) The dismissal of Mr. U. Tribble for alleged
" ..Your failure to comply with the Conrail Drug
Testing Policy as you were instructed in letter dated
April 08, 1987 and subsequent letter dated June 01,
1987 from Medical Director Dr. P. F. Maranzini, in that
you failed to refrain from the use of prohibited drugs
as evidenced by the urine sample provided on July 27,
1987 testing positive", was without just and sufficient
cause, arbitrary, capricious, on the basis of unproven
charges and in violation of the Agreement (System File
CR-3236-D).
(2) As a consequence of the violations referred to in
Part (1) above, the Claimant shall be reinstated with
seniority and all other rights including overtime and
benefits unimpaired, his record shall be cleared of the
charges leveled against him and he shall be paid for
all wage loss suffered.
OPINION OF THE BOARD
Claimant, U. Tribble, was a Welder's Helper. 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
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and, as part of his return to duty physical conducted on April
2, 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 and cocaine.
In accordance with Carrier's policy on drugs, Claimant was
medically disqualified from service by letter dated April 8,
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. On May 27, 1987, however, Claimant provided another
specimen which tested negative. Accordingly, Carrier qualified
Claimant to return to duty on June 1, 1987 subject to his
remaining free of prohibited drugs as demonstrated in unannounced
periodic follow-up testing.
On July 27, 1987, Claimant provided a specimen for periodic
follow-up testing. The specimen allegedly proved positive for
cannabinoids and cocaine.
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By notice dated August 12, 1987, Claimant was notified to
attend a hearing in connection with charges concerning his
alleged failure to comply with Carrier's drug testing policy.
Claimant was present and represented by the Organization.
Following the hearing, Claimant was notified by Notice of
Discipline dated October 5, 1987 of his dismissal in all
capacities for failing to comply with Carrier's drug testing
policy.
Carrier's drug testing policy, insofar as it is applicable
to this case and all cases now before this Board, was
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
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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
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 dismissed
pursuant to this drug testing policy: It argues that Claimant
was aware of the policy, yet he failed to abstain from using
drugs as ordered by Carrier, and that Claimant was therefore
guilty of insubordination. The Carrier further argues that its
right to dismiss Claimant 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's dismissal
was violative of the law and parties' Collective Bargaining
Agreement. It further argues that there exist specific
irregularities in Carrier's handling of this case which must
result in sustaining of the claim. Most notably, the
organization notes that Claimant asked that a blood test be done
on July 2, 1987, and that he subsequently entered a treatment
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program and received a favorable letter from Carrier's EAP
Counselor dated August 6, 1987.
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 that test, and in subsequent tests, were
adequate. The results of the April 2 test were not initially
contested, as no claim was filed for the time in which he was
held out of service. Thereafter, carrier acted within its
rights in requiring Claimant to submit to periodic follow-up drug
testing for a three year period. Carrier has established that
the test results from the July 27, 1987 test accurately showed
that Claimant had cannabinoids and cocaine in his system, and
that the presence of these substances was as a result of use by
Claimant rather than any other reason. In these circumstances,
the claim must be denied notwithstanding the extraordinary
representation provided to Claimant by the Organization.
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AWARD
Claim denied.
ZALSRI J. DD
Ca er Memb(6-/ Or nization Member
S. E. BUCHHEIT
Neutral Member
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