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PROCEEDINGS BEFORE PUBLIC LAW BOARD N0. GeES

AWARD NO. 1 case No. 1

Docket No. CA-GI Referee Fred Blackwell Carrier Member: 3. H. Burton PAR"_'~ES '?'O DISPU'_'r :

AMERICAN TRAIN DISPATCHERS ASSOCIATION VS.

CONSOLIDATED RAIL CORPORATION Labor Member: L. M. Mann :NT OF GLA72! :

appeal of the dismissal of Train Dispatcher D. J. Mackey on 12/16/88.

FINDINGS: t

Upon the whole record and all the evidence, after July 16, 1990 hearing in Philadelphia, Pennsylvania, the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor act, as amended; that the Claimant, who vas duly notified of said hearing and of his right to be present and participate in same, did not attend said hearing: and that this Board is duly constituted by agreement and has jurisdiction of the parties and of the subject matter.

OP7N20N

This is a discharge case in which the Claimant appeal: and protests the Carries action of December 16, 1988, whereby the carrier dismissed flee Claimant for his alleged failure to eompl~ with the Conrail' Drug Policy.

The record reflects that as a result of tests of speci

jj P. :.. Board No. 4865 / Award No. 1 - case No. 1

mans of Claimant's urine in April 1987, the Claimant became s;:n-

. ject under the Conrail Drug Policy to unannounced drug screens =c:

a period of three (3) years f,~m April 30, 1987. The Cla:nant.

submitted urine specimens on an unannounced basis-in July 1987 and;

February '1988 that tested negative for prohibited drugs. On No

vember 15, 1988, the Claimant submitted a urine sample that tested

positive for cannabinoids, a prohibited drug under the Conrail

policy, whereupon, under date of November 17, the Claimant was,

.notified by Conrail that he was medically disqualified for services due to the presence in his system of a prohibited substance. At the time of the Claimant's disqualification from service on Novem-, bar 17, 1988, the Claimant was assigned to a guaranteed Extra Train Dispatcher position. By Notice dated November 21. 1988, the Claimant was not. fied of charges and of a hearing thereon respecting his allegefailure to comply with the Conrail Drug Policy. The hearing was held on December 9, 1988, with the Claimant in attendance, on the following charge:

"Your failure to comply with Conrail Drug Testing Policy

' as you were instructed in letter dated April 16, 1987,

and subsequent letter dated April 30, 1987, from Medical

Director O. Hawryluk, M.D. in that you failed to refrair

from the use of prohibited drugs as evidenced by the

urine sample provided on November

is,

1988."

Following the hearing the Carrier concluded that the

hearing evidence established the Claimant's quilt of the infrac-

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non m.em

P. =. Board No. 4865 / Award No. 1 - Case No.

tion referenced in the charge, whereupon, on December 16, ;9s8, the carrier instituted the dismissal action against, the C:a:=a.^.t which is the subject of the herein appeal.

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The position of the organization is that the dismissal of Claimant should be set aside and Claimant reinstated to service with pay for all time lost. The organization makes three (3) basic arguments in support of this position, namely: 1. That Conrail lacked authority to conduct the dn:5 I. testing that led to the dismissal of the Claimant: 2. That Conrail did not use proper procedures in the collection and testing processing of the urine specimen of the Claimant: and 3. That Conrail did not meet its burden of proof at th, hearing. The Carrier asserts that the subject discipline is sup ported by substantial evidence in the record as a whole and c that basis, should not be disturbed. r r r r r r r r r r i After due study of the foregoing and of the record as whole, including the submissions presented by the parties in su; port of their respective positions in the case, the Board cc: cludes and finds that the record contains no procedural irregula. ities that warrant altering the discipline and that the reco LACOMI contains substantial evidence to support the Carrier's findings I,.e PC" VAT 3 Guneftft WMWO MM MME R. ' P. L. Board No. 4665 / Award No. - - Case L:o 'I I' the Claimant's guilt of t.~e infraction referenced in, the charge I . and that discipline for suc:% infraction was warranted. The Organization's argument that Conrail lacked authority: to conduct the herein drug testing (Item A., page 4 of the Organi-I zation Submission), has been rejected in numerous prior Board' awards that have found the Conrail Drug Policy to be a proper and; reasonable exercise of Conrail's managerial prerogatives. Indeed,: since its establishment -n February 1987, the Conrail Drug Policy has been upheld by various referees as a proper exercise of Conj1rail's obligation and duty to the public and to its own employees Ito provide safe railway operations. No prior Board authorities 1 cited of record, has found. the policy unreasonable or that Conraill lacks authority to conduct the drug policy. The reasonableness of the policy was confirmed in No. 92 of Public Law Boa^d No. 2720 (03-20-89). "Second, as a general principle, we find Carrier's drug policy, both in its formulation and administration, to be reasonable and fair, particularly in light of the dangerous nature of the work which is involved in the railroad industry. ' Third, as an extension of the preceding area of consideration, we concur that Carrier is entitled to ex pect a drug-free workforce, and to promulgate and enforce reasonable rules, regulations, policies and procedures among its employees in the pursuit of that goal." Prior Hoard awards have also enunciated the Carrier's BIJCMU right to dismiss an Employee for failure to comply with the drug rt0*r a LM . cow wn WAR"ANG XM Wt W14M P. L. Board No. :865 / Award No. 1 - Case No. ii I 'ipolicy. . For example, in Put-lic Law Doa-d No. 2720. Rvt-A re (02- '~09-89), the Board denied the appeal of such a dismissal with thls comment: "Given Claimant's obvious, continued lack of interest in preserving his job with carrier, and given Car- ' rier's duty and responsibility to employ a sober work- force in carrying out its mission, we find that Carrier did not abuse its discretion by dismissing Claimant for failure to comply with Carrier's drug testing policy." These conclusions are not dispelled by the contra A.%ITRAX: i Awards (Cases Nos, ?6. 26. and 28. Public Law Boa-d No 441S (0727-90)) cited by the Organization, because there are substantial fact differences between the disputes in the AMTRAK awards and the confrontincj dispute. Although Public Law Board No. 4418 rejected AMTRAK's claim of authority to include a drug screen as part of a return to work physical of a TCU-AMTRAK employee, this decision vas based upon the board's reading of AMTRAK Rule 23 (a) as precluding "the Carrier from routinely requiring physical examinations, including drug tests of employees returning from leaves., The text of the TCU-AMTRAK Rule 23 (a), governing "Physical ExamInations and Disqualification" reads as follows: "Employees, after completing sixty (60) calendar days o service, will not be raquired.to submit to physical exam ination unless it is apparent their physical condition i such that an examination should be made." Ho rule such as the one above quoted is cited in the herein recor .-_ryas applicable the this case and hence, the AMTRAK authorities ha% ,nt~ a!arar Rar 5 wRnwo an ami 04m ii P. L. Board No. 4865 / Award No. 1 - Case No. 1 no application to the circumstances of. this case. As regards the Organization's suggestion that the dismIs- sal of. the Claimant is not well founded, because, the Carrier's, dismissal action was not based upon evidence of the Claimant'sl impairment at the time of his disqualification from service, the Board observes that for sound reasons the Conrail Drug Policy is not restricted to the conditions that apply to alcohol abuse such: as on-duty use or impairment while on duty. The possession of:i prohibited drugs is illegal: the possession of alcohol is not But more important, scientific disciplines have established beyond question that the referred to prohibited drugs may impair humane faculties and hence, 'in many work areas including major parts of~ the railroad industry, a policy has emerged of removing a particular Employee from the work environment when a test of his bo fluids shows positive for a prohibited drug(s). The potential harm to the particular Employee and others, established by irrefutable scientific evidence that use of the prohibited drugs may impair the faculties of the Employee, is not only the reason why i the distribution of the drugs covered by Conrail's policy is pro- hibited by law, but also is the reason why a railroad employer need not delay removing the Employee from the railroad environment until impairment is evident or the Employee is caught using a prohibited drug(:). We have also found unpersuasive the organization's argu, ?Va uv meats that Conrail did not use proper procedures in the collectio Irv PC" w( 6 WITAeISM& VARnomxR ~r rnaam P . ... Board No. <865 / Award No. 1 - Case No. 1 and testing process of the Claimant's urine specimen (I tea B., -. page < Organization Submission). The Board notes in this regard that the record of the hearing transcript, Exhibit Q, contains the notarized, certification, which relates to the drug test of the Claimant's specimen, by a Roche Biomedical Laboratories' Medical' i Technologist, Caroline A. Smith, and her Supervisor, Daniel G. Aichele, stating as follows: . "I hereby certify that the data, instrument function; ~I checks and the Chain-of-Custody documentation pertaining to analysis of the specimen listed above have been re-, viewed. The results are accurate and reliable as report ad." The Board notes that inasmuch as the record contains no contra evidence or challenge in the transcript of the investiga tive hearing, the cited certification and similar evidence of record is accepted by the Board as satisfactorily validating the efficacy and reliability of the drug testing procedures involved in this case. The organization's final argument is that the carrier did ndt meet its burden of proof at the hearing, because it failed tc provide a competent witness to testify about the test results anc the testing procedures (Item C, page t organization Submission). This argument of the organization has been very closely analyzed, because the Carrier witness who introduced the documentation Or the results of the Claimant's drug test. acknowledged that he wa: .. not qualified to testify about the type of tests made on the urin .#in NNW NU 7 Ganeaura MARMo ssn ao» m41M P. L. Board No. 4885 / Award No. i - Case No. ,i fjspecimen and whether drags such as "tylenol" would show up in the ,i ispecimen as a prohibited drug such as "marijuana". However t:. Union Representatives did not request at the hearing that a ccapetent witness be brought in to testify. and answer questions about, the drug test: and instead, the organization now argues that the 'flack of knowledge of the Carrier witness shows the Carrier's failii ;lure to meet its burden of proof. Accordingly, the facts of this. i case do not come within the line of prior Board rulings that a due I (;process defect arises in circumstances where the presence of a lwitness who is competent to testify on the medical and technical considerations of a drug test, is reasonably necessary, is requested by or in the Claimant's behalf, and is not made available by the Carrier. In Award No. 400 of =-Conrail SSA. No. 910 (05-05 for example, the Board noted that the Carrier is allowed latit, in hearing procedures where "...no request for additional materia witnesses had been made while the hearing is in progress ...": th Board then went on to find prejudicial error resulted from Car rier's denial of the Local Chairman's request to call two (2) na:. ed witnesses who had prepared a "Medical Report" submitted by Cor rail to support the charge that Claimant had violated the Conra Drug Policy. As noted, however, the facts of the confronting d i: putt do not evidence a denied request by Conrail for a materi witness, which is essential to come within the rationale of a iEr a uw thorities such as Award No. 430. Ana ~awi wn B Wff WOMUM wRrsso ssa ao,i namo :i ~i P. L. Board No. :865 / Award No. 1 - Case No. 1 Consequently, the Organization argument that this facet. of the case shows the Carrier's failure to meet its burden of proof, is unpersuasive, and, moreover, the documentary evidence, comprised of the laboratory results of the testing of the Claimant's urine specimen, and the findings relative thereto by appropriate technical and medical professionals, makes a prima facie case of the Claimant's guilt of the charge of failure to co=ply with the Conrail Drug Policy. Nothing submitted in the Claimant's behalf rebuts and dispels that prima facie case. The Board fu-..her concludes and finds that the recor: contains no mitigating circumstances or other considerations that warrant altering the Carrier's decision to dispense the discipline of dismissal to the Claimant, and that the discipline of dismissa: is not unreasonable or arbitrary in light of the nature of the of fens* established by the evidence. In view of the foregoing, and on the basis of the recor as a whole, it is found that the record contains substantial evi dance to support the Carrier's findings of the Claimant's guilt c the infraction referred to in the charge and that the disciplir of- dismissal was warranted for such infraction. The claim wi: therefore be denied. W~$g: _ Claim denied. BY ORDER OP PUBLIC LAW BOARD N0. 1865 ~raur ,ns ~dw~ r~r 9 o ase oou 1rn1mo .i, ~i P. :.. Board No. 4865 / Award No. 1 - Case No. ; red alackwell. Neutral Member J. H. Burton, Carrier Member y L. M. Mann,/ Union Member Executed on/-~ 7 , 1990 CONRAIL\4865\1-1.025 i ma OWN VW to am MARA" sane WI m40 PROCEEDLNGS BEFORE PUBUC LAW BOARD NO. 4865 AWARD NO. 1 CASE NO. 1 DOCKET NO. CA-41 Carrier Member: J.H. Burton Labor Member: L..M. Mann PARTIES TO DISPUTE AMERICAN TRA N DISPATCHM ASSOCIATION vs. CONSOLIDATED RAIL CORPORATION DISSEN? BY AMERICA.' TRALN DISPATCI-MRS ASSOCIATION Aside from the other issues relating to the lack of Conrail's authonty to conduct the testing herein, and the improper procedures used in the collection and testing of the urine specimen, this dissent will focus on Conrail's failure to meet its burden of proof at the hearing. Conrail failed to provide any witness who could testify as to the type of test that was performed or to any other relevant questions concerning the specifics of the drug test which was performed. In view of the various problems which continue to exist in the field of drug testing, it is imperative thAt a referee requires a strict burden of proof of the validity and reliability of any drug test which is performed. The fact that the failure of a union representative to specifically request a competent witness to be provided at the hearing should not preclude such a requirement in meeting the minimum burden of proof., There is a responsibility upon the referee to assure that the hearing is fairly conducted, and that the minimal requirements of proof are met. Simply providing a person as a witness who PL ig PD, -f ~l~ gwD _ i has no knowledge of the drug testing procedures, falls way short of any minimum requirements. For these reasons, I hereby respectively dissent. Lawrence M.. Mann Labor Member i r .. J