(1) The dismissal of Mr. R. Henry for alleged "...Your failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated August 6, 1987 and subsequent letters dated August 20, 1987, September 15, 1987 and October 16, 1987 from Medical Director Dr. G. R. Gebus, in that you did not provide a negative drug screen by November 30, 1987", was without just and sufficient cause, arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File CR-3540-D).
(2) As a consequence of the violations referred to in Part (i) 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.
problems. In addition, Carrier was 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 August 6, 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.
On August 14, 1987, Claimant provided another specimen which also allegedly tested positive for cannabinoids. Thereafter, in September, 1987, Claimant entered a rehabilitation program with Carrier's assistance. As this was done within the 45 day limit set forth by Carrier, Claimant was not then dismissed. Carrier's Medical Director, however, was subsequently notified that Claimant had ceased satisfactory participation in the treatment program. Accordingly, by letter dated October 16, 1987, the Medical Director informed Claimant that he must provide a
negative urine sample to the specified medical facility by November 30, 1987. Claimant did not meet this deadline.
Accordingly, by notice dated December 11, 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 testified at the hearing that he attempted to provide a negative urine sample by November 30, 1987, but the facility at which he gave his original sample was no longer taking specimens from carrier employees, and thereafter he was unable to make timely arrangements to provide a negative sample at another facility. Following the hearing, Claimant was notified by Notice of Discipline dated February 3, 1988 of his dismissal in all capacities for failing to comply with Carrier's drug testing policy. Thereafter, the record indicates that Claimant continued to have ongoing difficulties with drugs and sought renewed rehabilitation help.
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
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 by November 30, 1987 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 further argues that there exist specific irregularities in Carrier's handling of this case which must result in sustaining of the claim. In addition, it notes that Claimant submitted a negative urine sample to ADA, the treatment center recommended by carrier EAP counselor McMahon. Finally, the Organization asserts that as Claimant was unable to return to work due to knee injury during the entire period now in question, his dismissal was particularly improper.
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 in part.
Under the circumstances Claimant's dismissal was not proper.provide such service. While it is true that Claimant waited until the end of the period set by Carrier in order to provide the sample, it is equally true when an employee seeks to submit a specimen within the designated period and the designated facility is unavailable for use through no fault of the employee, it is arbitrary to automatically terminate the employee for not meeting the precise deadline set for submitting the specimen without consideration of the circumstances involved. Furthermore, the record is clear that once Claimant became aware that the facility would not be available for his use, he made efforts to contact carrier concerning the matter. Claimant is therefore entitled to reinstatement, subject to the normal conditions imposed upon an employee returning under similar circumstances.
The Board has further determined, however, that the reinstatement should be without back pay. The only drug tests given to Claimant for which results have been properly verified were those he submitted to on July 31, 1987 and August 14, 1987, both of which tested positive for cannabinoids. In this regard, carrier was not required to accept the results of the private drug test Claimant allegedly underwent on December 18, 1987, the results of which were allegedly negative, that was referenced in the General Chairman's Appeal in this matter. Moreover, as of the date of the hearing on the property, Claimant was continuing to undergo drug counseling. In these circumstances, it cannot be found that Claimant was free of drug usage and medically fit for work. Accordingly, no back pay is here proper.