(1) The dismissal of Mr. R. J. Panada for alleged " ..failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated April 20, 1987 and subsequent letter dated May 8, 1987 Prom Medical Director Bishop, in that you failed to refrain from the use of prohibited drugs as evidenced by the urine sample provided on July 2, 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 CR3193D).
(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.
and, as part of his return to duty physical conducted on April 10, 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.
April 20, instructed
therein to provide a negative urine sample within 45 days. 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 May 5, 1987, however, Claimant provided another specimen which tested negative. Accordingly, Carrier qualified Claimant to return to duty on May 11, 1987 subject to his remaining free of prohibited drugs as demonstrated in unannounced periodic follow-up testing.
On July 2, 1987, Claimant provided a specimen for periodic follow-up testing. The specimen allegedly proved positive for
By notice dated July 27, 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 was present and represented by the organization. Following the hearing, Claimant was notified by Notice of Discipline dated September 9, 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:
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. Most notably, the Organization notes that Claimant asked that a blood test be done on July 2, 1987, and that he subsequently entered a treatment
program and received a favorable letter from Carrier's EAP Counselor dated August 6, 1987.
In Award No. 1, also issued this day, the 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.
Pursuant to Carrier's policy, Claimant was given a return to work physical which included a drug screen. The testing procedures used in that test, and in subsequent tests, were adequate. Claimant did not contest that the results of the April 10 test were inaccurate, and no claim was filed for the time in which he was held out of service. Carrier acted within its rights in requiring Claimant to submit to periodic follow-up drug testing for a three year period. Carrier has established that the test results from the July 2 test accurately showed that Claimant had cannabinoids in his system, and that the presence of that substance was as a result of use by Claimant rather than any other reason. Moreover, shortly thereafter Claimant acknowledged he had a substance abuse problem and entered a rehabilitation program.
In these circumstances, the claim must be denied notwithstanding Claimant's commendable efforts at rehabilitation and the extraordinary representation provided to Claimant by the organization.