(1) Holding Mr. John Herron out of service for failure to comply with the Conrail Drug Testing Policy in that he did not provide a positive urine specimen when he was tested at his normal return-to-duty physical on March 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-3218).
(2) As a consequence of the violations referred to in Part (1) above, the Claimant shall be compensated for all time lost, including overtime for the period between April 13, 1987 and April 21, 1987 inclusive and his record shall be cleansed of any drug related offenses.
Claimant, J. Herron, Jr., was a Trackman. As is typical with many employees who occupy like positions, Claimant was essentially a seasonal employee who would normally be furloughed for the winter until the following spring.
Claimant was recalled to duty for the 1987 production season and, as part of his return to duty physical conducted on March
30, 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 3, 1987 from Carrier's Medical Director. Claimant was instructed therein to provide a negative urine sample within 45 days, or by May 18, 1987. 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 16, 1987, however, Claimant provided another specimen which tested negative. Accordingly, carrier qualified Claimant for return to duty on April 21, 1987 subject to his remaining free of prohibited drugs as demonstrated in unannounced periodic follow-up testing. Claimant returned to work on April 23, 1987. He was not compensated for the time period during which he was withheld from service.
Carrier's drug tasting 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 was found to have cannabinoids in his system during his return to work physical, and thereafter he was properly withheld from service until such time as he provided a negative urine sample. The Carrier further argues
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 withholding from service and 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. More specifically, the organization alleges that Claimant was compelled to give his sample in a "urinal" type of environment which created substantial possibility that his specimen may have been contaminated.
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 sustained.
The Board here finds substantial .reason to doubt the accuracy of the positive test result for the urine sample submitted by Claimant on March 30, 1987. Claimant obviously believed at the time of the test that the urine sample was taken under circumstances of questionable validity. For this reason he gave a second urine sample on that date which was tested by Claimant's personal physician and purportedly proved negative. In addition, the Organization has alleged that specimens were collected in the Emporium area at that time by having the employees urinate into a "urinal-type" basin. The specimen was then allegedly emptied into a bottle inserted beneath the basin. while Carrier has contended that Claimant's specimen could not be contaminated if such a basin was properly washed between uses, there is here insufficient evidence that in fact the basin was properly washed after each use. Clearly, use of such a basin did not comply with procedures established by Roche Biomedical Laboratories. Finally, it is notable that Claimant retested negative a short time after the test of March 30.
Given the totality of circumstances, it has not been established to the Board's satisfaction that Claimant's initial positive drug test was accurate. It follows that he was improperly withheld from service until the time of his second test. Accordingly, the claim must be sustained.