(1) The dismissal of Mr. W. Mathis for alleged "...Your failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated April 7, 1987 and subsequent letter dated May 29, 1987 from Medical Director Dr. P. Hanson, in that you failed to refrain from the use of prohibited drugs as evidenced by the urine sample you provided on September 29, 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-3340-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, W. Mathis, was a Trackman. On March 30, 1987, Claimant received a full physical examination, which included a requirement 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
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 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. Claimant did, however, provide a specimen within the prescribed 45 day time limit which tested negative. Accordingly, he was qualified for return to duty on May 29, 1987, subject to his remaining free of prohibited drugs as demonstrated in unannounced periodic follow-up testing.
On September 29, 1987, Claimant provided a specimen for periodic follow-up testing. The urine specimen allegedly tested positive for cannabinoids.
By notice dated October 30, 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 December 16, 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:
be withheld from service by Health Services;
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The Carrier maintains that Claimant was properly dismissed pursuant to this drug testing policy. It argues that Claimant was aware of the policy, tested positive for cannabinoids in his physical examination, and thereafter 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 parties' Collective Bargaining Agreement. Finally, the organization emphasizes Claimant's 26 years of seniority and contends that no reason has been established why he was given the initial drug test on March 30.
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.
In numerous other cases this Board has generally upheld the carrier's right to unilaterally implement its drug testing policy and dismiss employees who fail to comply. There are here no irregularities or mitigating factors particular to this case which can be found to warrant sustaining of the claim. The discipline cannot now be set aside pursuant to the Organization's argument that there was no justification for the initial drug test given Claimant. Notably, no claim was filed at the time contesting the validity of this test or Carrier's determination to withhold Claimant from service as a result thereof. Moreover, Claimant candidly acknowledged at the hearing on the property that he was not in compliance with Carrier's drug testing policy, and that he had ongoing difficulties with drugs which required treatment. While the Board is not unaware of Claimant's length of good service with Carrier and its predecessors, extensive precedent establishes that this is not a basis upon which this Board is privileged to sustain the claim. Accordingly, the claim must be denied.