(1) The dismissal of Mr. R. Neal for alleged "...Your failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated November 30, 1987, from Medical Director G. R. Gebus, in that you idid 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-3557-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.
Claimant, R. Neal, was a Trackman. Claimant was ordered to take a return to duty physical, as he had been out on injury for over 30 days. Part of that physical, taken on November 23, 1987, was 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 144 -'4 u I S
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 November 30, 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, which was by January 14, 1988, and that his failure to comply
with these instructions may subject him to addition, the Medical Director recommended in
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 January 12, 1988, however, Claimant did submit another specimen which allegedly tested positive for cannabinoids. He did not thereafter submit a negative urine specimen within the prescribed 45 day limit.
By notice dated January 18, 1988, 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 February 24, 1988 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:
was aware of the policy, did not provide a negative sample within 45 days 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 Taw 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. The Organization also asserts that as Claimant's test results on January 12, 1988, showed a reduction from the level of 200 to 17 MG/ML, it may well be that 17 was the lowest level Claimant could achieve through abstinence during the period of time that he was allotted under Carrier's policy.
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 denied.
In numerous similar cases handled by this Board it has generally upheld the Carrier's right to unilaterally implement 5
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. The Board is satisfied that the reading from the January 12, 1988 test of 17 MG/ML establishes use of drugs by Claimant after November 23, 1987, as in other cases employees with cannabinoids in their system at the time of the original return to work physical have achieved a test result below the 10 MG/ML cut-off point prior to 45 days. Accordingly, the claim must be denied.