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



CONSOLIDATED RAIL CORPORATION
 "Carrier"

 STATEMENT OF CLAI1
Case No. 38

 Award No. 38

 Claim of the Pennsylvania Federation, BMWE that:

(1) The dismissal of Mr. J. Boone for alleged "...Your failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated September 01, 1987, from Regional Medical Director Dr. G. R. Gebus, in that you did not, within 45 days of that letter, provide a negative drug screen" was without just and sufficient cause, arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File CR-3398-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. Boone, was a Trackman. On August 25, 1987, Claimant was required to undergo a physical examination, part of 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 Claimant's specimen allegedly tested positive for



cannabinoids and cocaine.

In accordance with Carrier's policy on drugs, Claimant was medically disqualified from service by letter dated September 1, 1987 from Carrier's Medical Director. Claimant was instructed therein to rid his system of cannabinoids and cocaine 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. On October 15, 1987, Claimant provided another specimen which allegedly also tested positive for cocaine. Thereafter, Claimant failed to produce a negative urine specimen within the prescribed 45 day limit as directed.

8y notice dated October 28, 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 25, 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 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

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              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 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, did not provide a negative sample within

          45 days as required by the policy and ordered by Carrier, and

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' . ' 1 38-4Lols


        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. Carrier also maintains that the organization did not properly raise a question concerning the propriety of Claimant's initial drug test, and that in any event it was proper as a return to work physical. Finally, Carrier contends that as a plea for leniency was made on the property on behalf of Claimant, this matter is removed from the Board's jurisdiction.

        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 further argues that there exist specific irregularities in Carrier's handling of this case which must result in sustaining of the claim. It asserts that the Carrier has failed to establish, as necessary, the reason that Claimant was given the initial drug screen. Finally, the Organization contends that Claimant's defense on the property was not a plea for leniency.


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        In Award No. 1 this Board set forth guidelines concerning how it would consider certain cases arising under Carriers drug testing policy. Applying those principles to the facts of this case, the Board finds that the claim must be denied.

        Claimant was given a physical which included a drug screen. Under the circumstances, the Board cannot now conclude that Carrier acted outside its rights in requiring Claimant to submit to this examination. Notably, the reason for the physical examination was apparently not questioned or contested until long after the fact. Carrier has established that the test results accurately showed that Claimant had cannabinoids and/or cocaine within his system, and that the presence of these substances was as a result of use by Claimant rather than any other reason. Moreover, it was not disputed at the hearing on the property that Claimant had a substance abuse problem. Claimant did not, as required by the drug testing policy, provide a negative sample within 45 days or refer to the employee counselor. Finally, there are no irregularities or other mitigating factors particular to this case which can be found to warrant sustaining of the claim. Even assuming no plea for leniency was made, the record reveals no basis that would allow the Board to set aside the discipline assessed. Accordingly, notwithstanding the extraordinary representation provided the Claimant by the organization, the claim must be denied.


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        AWARD


            Claim denied.


        F. ZAISKI J. DD

        Ca er Memo o isation Member


                          R ~, (~, t


                        S. E. BUCHHEIT

                        Neutral Member


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