(1) Holding Mr. L. Williams 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 20, 1987, was without just and sufficient cause, arbitrary, capricious, on the basis of unproven allegations and in violation of the Agreement (System File CR-3157D).
(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 May 5, 1987 and June 1, 1987 inclusive and his record shall be cleansed of any drug related offenses.
(1) The dismissal of Mr. L. Williams for alleged " ..failure to comply with the Conrail Drug Testing Policy in that you failed to refrain from the use of prohibited drugs as evidence of your urine sample you provided on 7/28/87 that tested positive", was without just and sufficient cause, arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File CR-3223D)
(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
Claimant, L. Williams, 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 April 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 drug screen urinalysis work, that Claimant's specimen allegedly tested positive for cannabinoids.
In accordance with Carrier's policy on drugs, Claimant wasthe time period for providing a negative urine sample could be extended.
Claimant did not enter the Carrier sponsored treatment program. On May 6, 1987, however, Claimant did provide another urine specimen which allegedly also tested positive for cannabinoids. Accordingly, Carrier continued to withhold Claimant from service. On May 21, 1987, Claimant provided a third specimen, which on this occasion was found to be negative. Carrier therefore qualified Claimant for return to duty on May 25, 1987, subject to his remaining free of prohibited drugs as demonstrated in unannounced periodic follow-up testing. Claimant returned to work on June 2, 1987, but was not compensated fbr the time withheld from service.
On July 28, 1987, Claimant provided a specimen for periodic follow-up testing. The urine specimen allegedly tested positive for cannabinoids.
By notice dated August 3, 1987, Claimant was held out of service and by notice dated August 19, 1987 he was notified to attend a hearing in connection with charges concerning his alleged failure to comply with Carrier's drug testing policy. The hearing was held on August 27, 1987 with Claimant present and represented by the organization. Following the hearing, Claimant was notified by Notice of Discipline dated September 15, 1987 of his dismissal in all capacities for failing to comply with Carrier's drug testing policy.
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:
The Carrier maintains that Claimant was properly withheld from service without pay, and subsequently dismissed, pursuant to this drug testing policy. It argues that Claimant was aware of the policy, that he was properly withheld from service until such time as he was declared medically fit for service by providing a
negative urine sample, and that after his return to service he did not remain drug free 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 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 the parties' Collective Bargaining Agreement. It further argues that there exist specific irregularities in Carrier's handling of these cases which must result in sustaining of these claims.
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 these cases, the Board finds that these claims 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 these tests, and others subsequently
administered to Claimant which 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. Carrier therefore acted within it rights by withholding Claimant from service until such time as he provided a negative sample. Thereafter, Carrier further acted within its rights when requiring Claimant to undergo further periodic testing, and dismissing him in all capacities when he tested positive for cannabinoids during one of these follow-up tests. Finally, the Board finds no circumstances particular to these cases which now justify sustaining of the claims. Accordingly, notwithstanding the extraordinary representation provided the Claimant by the Organization, the claims must be denied.