(1) The dismissal of Mr. F. Williams for alleged "...failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated April 21, 1987, from Medical Director G. R. Gebus, in that you did not, within 45 days of that letter, either provide a negative drug screening or enter Conrail's Employee Assistance Program" was without just and sufficient cause, arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File CR-3167D).
(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 15, 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 21, 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 June 5, 1987, 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 treatmentBy notice dated June 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. The hearing was held with Claimant present and represented by the organization. Claimant testified at this hearing that he did not keep the June 3, 1987 appointment to provide the negative urine specimen within 45 days due to suicide attempt by his daughter. In support of this claim, Claimant produced a letter dated July 10, 1987 from the Rochester Psychiatric Center reading that "Patient was hospitalized at Rochester Psychiatric Center from 6/3/87-7/1/87." Following the hearing, Claimant was notified by Notice of Discipline dated July 22, 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
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 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. Finally, Carrier maintains that it has established that the letter from Rochester Psychiatric Center was fraudulently altered by Claimant to state that his daughter was hospitalized from "6/25/871° to read that she was hospitalized from "6/3/87", and that the Board should not
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. Finally, the Organization contends that Carrier cannot at this late date attack the legitimacy of the letter from the Rochester Psychiatric Center, that carrier improperly obtained information concerning that letter through the issuance of a subpoena, and that under the circumstances carrier has not established that the letter was altered in any way or Claimant's testimony of his daughter's suicide attempt was not accurate.
The Board has determined that the claim must be sustained. The record evidence developed on the property establishes that Carrier's application of its drug testing policy was here arbitrary and capricious against Claimant.
More specifically, it is undisputed that Claimant provided a negative urine specimen on June 8, 1987. While it is true that this was three days beyond the 45 day time limit established by Carrier, Claimant was scheduled to provide a urine sample on June 3, 1987, within the 45 day limit. Claimant testified at his
hearing on _the property that his failure to keep this earlier appointment was caused by extreme mitigating circumstances. More specifically, Claimant alleged that at that time his daughter attempted suicide and he was on June 3 at her bedside in New York. Claimant supported this contention by providing a letter from Rochester Psychiatric Center allegedly stating that his daughter was hospitalized as of June 3, 1987. Carrier did not on the property refute Claimant's testimony in this regard or the accuracy of the letter from the Rochester Psychiatric Center. Rather, notwithstanding this evidence, Carrier determined to dismiss Claimant because he nonetheless did not provide the negative specimen as required within the 45 day limit.
While in Award No. 1, also issued this day, this Board stated that it will generally abide by precedent concerning the legitimacy of Carrier's drug testing policy, it has also made clear that it will review any irregularities or mitigating factors which may be present in an individual case. In this
employee who 1968, due to
Carrier to discharge Claimant, an Conrail and its predecessor since a negative urine specimen within 48
days rather than 45. His daughter's alleged suicide attempt and subsequent hospitalization provided a clear justification for his slight delay in providing the negative urine sample. Notably, Claimant submitted the negative urine sample on the first business day after returning from his daughter's bedside.
In sum, Claimant was dismissed due to his alleged failure to comply with Carrier's drug testing policy, not for alteration of documents. As the evidence on the property establishes that Carrier's application of its drug testing policy was here arbitrary and capricious, it follows that the claim must be sustained and the Claimant reinstated with full seniority. Moreover, as Claimant provided a negative urine sample on June 8, 1987, he is unquestionably entitled to be made whole for all lost wages and benefits from that date forward.