(1) The dismissal of Mr. F. Walker for alleged "...Your failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated May 14, 1987, from Medical Director G. R. Gebus, in that you did not, within 45 days of that letter, provide a negative drug screen", was without just and sufficient cause, arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File CR-3238-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.
Claimant, F. Walker, was a Vehicle Operator. 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 called to duty for the 1987 production season and, as part of his return to duty physical conducted on May 7,
1987, was required to submit a urine sample. Carrier was subsequently notified by Roche Biomedical Laboratories, the company that performs all of Carrier's urinalysis work, that Claimant's specimen tested positive for cannabinoids.
In accordance with carrier's policy on drugs, Claimant was medically disqualified from service by letter dated May 14, 1987 from Carrier's Medical Director. Claimant was instructed therein to rid his system of cannabinoids and other prohibited drugs and to provide a negative urine sample within 45 days and that his failure to comply with these instructions may subject him to dismissal. 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 June 25, 1987, however, Claimant provided another specimen, which allegedly also tested positive for cannabinoids. The Claimant thereafter failed to provide a negative urine sample within the 45 day period as directed.
Accordingly, by letter dated July 14, 1987, Claimant was notified to attend a hearing. The hearing took place on August 24, 1987. Claimant was present and represented by the organization. The Hearing Officer concluded the hearing on that
day, denying a request by the Claimant that the hearing be adjourned so that his private attorney could attend on a subsequent date. Following the hearing, Claimant was notified by Notice of Discipline dated September 8, 1987, that he was dismissed 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 Drug Testing Policy Summary attached then stated the following:
The carrier maintains that Claimant was properly dismissed pursuant to this drug testing policy. It argues that Claimant was aware of the policy, did not provide a negative sample within 45 days as required by the policy and ordered by Carrier, and that Claimant was therefore guilty of insubordination. The Carrier further argues that its right to discharge Claimant in such circumstances is not restricted by law, 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 Carrier contends that Claimant's dismissal was violative of the law and the 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.
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.
also proved positive, were adequate. Carrier has established that the 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. Claimant did not, as required by the drug testing policy, provide a negative sample or refer to the employee counselor within 45 days. Moreover, under the circumstances, the Board finds no procedural errors committed by Carrier which warrants setting aside otherwise justifiable discipline. Accordingly, notwithstanding the extraordinary representation provided the Claimant by the organization, the claim must be denied.