(1) The dismissal of Mr. L. Rupp 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 April 30, 1987 from Medical Director Dr. G. R. Gebus, in that you failed to refrain from the use of prohibited drugs as evidenced by the urine sample you provided on August 18, 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-3395D).
(2) As a consequence of the violations referred to in Part (1j 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.
and, as part of his return to duty physical conducted on April 12, 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 was medically disqualified from service by letter dated April 20, 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
program, the time could be extended.
The Medical Director further advised that if a counselor-approved educational or treatment
not enter the Carrier sponsored treatment did, however, provide a specimen within the
prescribed 45 day time limit which tested negative. Accordingly, he was qualified for return to duty on April 30, 1987, subject to his remaining free of prohibited drugs as demonstrated in unannounced periodic follow-up testing.
periodic follow-up testing. The urine specimen allegedly tested positive for cannabinoids.
By notice dated August 31, 1987, via certified mail, 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 October 27, 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:
before return to duty and during a follow-up
period after a disqualification for any
3
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 return to work 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. It also contends the Carrier's handling of certain medical documentation breached Claimant's right to confidentiality.