PUBLIC LAW BOARD NO. 4615
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

 "Organization"

 VS.

 CONSOLIDATED RAIL CORPORATION
 "Carrier"

 STATEMENT OF CLAI1
Case No. 31

 Award No. 31

 Claim of the Pennsylvania Federation, BMWE that:

(1) The dismissal of Mr. R. Stephens for alleged '° ..Your failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated April 20, 1987 and subsequent letter dated May 11, 1987 from Medical Director Dr. Bishop, in that you failed to refrain from the use of prohibited drugs as evidenced by urine sample provided on October 23, 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-3357-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, R. Stephens, 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
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 and, as par 10, 1987, w subsequently

 company tha work, that

 cannabinoids.

 t

 as

 t

 of his return to duty physical conducted on April
 required to submit a urine sample. Carrier was
 notified by Roche Biomedical Laboratories, the
 performs all of Carrier's drug screen urinalysis

 Claimant's specimen allegedly tested positive for

 In accordance with Carrier's policy on drugs, Claimant was

 medically disqualified from service by letter dated 1987 from Carrier's Medical Director. Claimant was therein to provide a negative urine sample within 45

 addition, the Medical Director recommended in this Claimant contact Carrier's employee counselor and

 recommendations that the counselor might make on

April 20, instructed days. In


letter that follow any


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 7, 1987, however, Claimant provided another specimen which tested negative. Accordingly, Carrier qualified Claimant for return to duty on May 12, 1987 subject to his remaining free of prohibited drugs as demonstrated in unannounced periodic follow-up testing.

On October 23, 1987, Claimant provided a specimen for periodic follow-up testing. This specimen allegedly tested positive for cocaine.



Accordingly, by letter dated November 5, 1987, Claimant was notified to attend a hearing in connection with charges concerning his alleged failure to comply with carrier's drug testing policy. Following the hearing, Claimant was notified by Notice of Discipline dated December 3, 1987, that he was dismissed in all capacities.

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:
















An employee whose first test is positive will be offered the opportunity for an evaluation by Conrail's Employee Counseling Service.



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:






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            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, that he was found to have cannabinoids in his system on April lo, 1987 during his return to work physical, 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' 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.

        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 sustained.

            The Board here finds substantial reason to disapprove of the


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testing procedures here used by Carrier. It is apparent that the specimens collected in the Emporium area at the time when Claimant gave his samples were done by having employees urinate into a "urinal-type" basin. The specimens were then emptied into a bottle inserted beneath the basins. While Carrier has contended that Claimant's specimens could not be contaminated if such a basin was properly washed between uses, there was here insufficient evidence that in fact the basin was properly washed after each use. Clearly, use of such a basin did not comply with procedures established by Roche Biomedical Laboratories. In addition, it is notable that there was an error in the first reporting of Claimant's test results, and that on several occasions Claimant provided negative samples. In these circumstances, the Board concludes that the test results verifying Claimant's drug usage are suspect, and that Claimant is therefore entitled to reinstatement with back pay, subject to all conditions applicable to an employee returning to work in similar circumstances.


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 31 -44lr

 AWARD
      Claim sustained. All money owed to be paid within thirty


(30) days.

 F. ZALSKT J DODD
 ca ier Me r anization Member

                                  r


                  S. E. BUCHHEIT

                  Neutral Member


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