(1) The dismissal of Mr. R. W. Wilson for alleged "...failure to comply with the Conrail Drug Testing Policy as you were instructed in letter dated April 10, 1987 and subsequent letter dated April 24, 1987 from 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 CR3194D).
(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 6, 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 10, 1987 from Carrier's Medical Director. Claimant was 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 April 22, 1987, however, Claimant provided another specimen which tested negative. Accordingly, Carrier qualified Claimant to return to duty on April 27, 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 cannabinoids.
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 Carrier maintains that Claimant was properly dismissed pursuant to this drug testing policy. It argues that Claimant was aware of the policy, that he tested positive for cannabinoids, and thereafter he did not remain drug free 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. Carrier also contends that leniency was requested on Claimant's behalf, and that the Board has no jurisdiction to sustain a claim where leniency has been requested. The Organization raises an extraordinary number of arguments
irregularities in Carrier's handling of this case and others which must result in sustaining of the claim. Most notably, the Organization acknowledges that leniency was requested in this case, but contends that under the circumstances, including that Claimant sought treatment after the July 2 test, the claim should be sustained.
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 procedure used in that test, and in the subsequent test, were adequate. Carrier has established that the test results accurately showed that Claimant had cannabinoids within his system, and that the presence of that substance was as a result of use by Claimant rather than any other reason. Upon his return to work, Claimant did not remain drug free as ordered by Carrier. Moreover, there has here been made a claim for leniency on Claimant's behalf.
The Board recognizes that the Organization has here made a