PUBLIC LAW BOARD NO. 4615
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BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES
"Organization" Case No. 37
VS.
Award No. 37
CONSOLIDATED RAIL CORPORATION
"Carrier" '.
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STATEMENT OF CLAIM
Claim of the Pennsylvania Federation, BMWE that:
(1) The dismissal of Mr. J. Tubbs for alleged "...Your
failure to comply with the Conrail Drug Testing Policy
as you were instructed in letter dated April 9, 1987
and subsequent letter dated May 22, 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 September 08, 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-3397-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, J. Tubbs, 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
37-~IW 5
and, as part of his return to duty physical conducted on March
30, 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 9,
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 22, 1987, subject to
his remaining free of prohibited drugs as demonstrated in
unannounced periodic follow-up testing.
On September 8, 1987, Claimant provided a specimen for
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37- Ncn t S
periodic follow-up testing. The urine specimen allegedly tested
positive for cocaine.
By notice dated September 15, 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 November 13, 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:
Conrail will include a screen for drugs when the
following medical examinations are conducted:
pre-employment physical examinations;
required periodic and return-to-duty physical
examinations;
before return to duty and during a follow-up
period after a disqualification for any
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37-LIc.l5
reason associated with drug use; and
executive physical examinations.
An employee with a positive test for illegal drugs
will:
be withheld from service by Health Services:
be required to provide a negative drug test
within 45 days, at a medical facility to
which the employee is referred by Conrail's
Medical Director, in order to be restored to
service. This 45-day period begins with the
date of the letter notifying the employee of
his/her being withheld from service.
An employee whose first test is positive will be
offered the opportunity for an evaluation by Conrail's
Employee Counseling Service.
If the evaluation reveals no addiction
problem, in order to be returned to service a
negative drug test must be provided within a
45-day period beginning with the date of the
letter notifying the employee of his/her
being withheld from service.
If the evaluation indicates an addiction
problem and the employe enters an approved
treatment program, the employe will be
returned to service upon recommendation of
the treatment program and the Conrail
Employee Counseling Service and must provide
a negative drug test within 125 days of the
date of the initial positive test. This time
period can be extended by Health Services
when warranted.
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:
refuses to submit to drug testing as part of
the physical examination;
fails to provide a negative test within the
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a a
37-5((015
45-day or 125-day period referred to above,
whichever applies; or
fails to provide negative drug tests in a
three year follow-up period arranged and
monitored by Health Services.
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, 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 that Carrier's handling of certain
medical documentation breached Claimant's right to
confidentiality.
5
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In Award No. I 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 issued by this Board it 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. In this regard, the Board does not find that under the
circumstances Carrier's handling of confidential medical
documentation warrants setting aside otherwise justifiable
discipline. Accordingly, the claim must be denied.
AWARD
Claim denied.
e~Y
F. ALSKI XX-
Ca ' r Membe~
S. E. BUCHHEIT
Neutral Member
DD
~ization Member