PUBLIC LAW SOARnNO. 4897
PARIM
Union Pacific Railroad Company
DISPUTE:
AND
United Transportation Union
M77EMENT OF CLAIM
:
Claim of Yardman R. A. Marquette for reinstatement to 'xrvice
with all rights unimpaired. removal of all entries of this
discipline from his personal record. and pay for all time lost,
including payment for all wage equivalents to which entitled,
with all insurance bets and any monetary loss. for such
coverage while improperly disciplined.
Upon the whole record. after hearing. the Board fords that the parties herein
are Carrier acrd Employees within the meaning of the Railway Labor Act. as
amended. and that this Board is duly constituted under Public Law 89-456 and
has jurisdiction of the parties and the subject matter.
'Ibis dispute is the companion for Award
Non.
64 and 57 of this Board.
Yardman Muquetie was involved in the same accident as that of the Homer,
who was injured in the accident described in Award No. 57. Further, Carrier
z
disciplined him in accordance with the discipline accorded the Hostler in the
dispute described in Award No. 64. However. this case differs from the other
cases in that the thrust of Claimant's dismissal here was the issue of the
alleged tampering with his urine sample in order to prevent a valid test by
Claimant immediately following the accident described in the earlier two
disputes. Claimant was charged with such tampering. and following the
investigation, was dismissed from service for that activity in accordance
with
the rules.
At the outset, it must be observed that the parties entead into a stipulation
agreeing that the time limit allegations by both sides were offsetting and should
not be considered in the ultimate determinations made in this matter. The
patties stipulated that the issue should be dealt with on its merits.
Petitioner insists that Claimam submitted to the thug test as required by
Car 'rnr on January 17, 1994 within a few hours after the accident dealt with in
the earlier dispute. Petitioner believes that following the charges in the
investigation. the alleged test results represented only a portion of the evidence'
necessary to support Carrier's conclusions of a rule violation. Petitioner
alleges that the chain of custody records were not preserved in this coat. and
the discipline must
be
set aside. Further. it is argued that theta is no evidence
to support Carrier's allegation that Claimant tampered with his test sample.
The Organization insists that the test results wen negative for the drags tested.
3
For that reason, Claimant had no motive to tamper with his test. as Petitioner
argues. Since Carrier failed to meet its burden of proof in this case.
it
is the
Organization's view that Claimant should not have been disciplined for the
alleged violation. Claimant's dismissal was not only harsh and excessive, but
totally unjustified by the facts here. For that reason, Petitioner believes that
Claimant should be reinstated to service with all rights unimpaired and
compensated for all time lost.
Carrier. on the other hand, believes that its wimess at the investigation, the
Manager of Drug and Alcohol Testing; was clear and unequivocal and
established without a doubt the chain of custody procedures in this case.
Carrier alleges that in this dispute, the record indicates the results of the drug
test showed that a substance was introduced into the urine sample which was
intended to prevent a valid analysis. Based on the evidence adduced by a
reputable testing laboratory. Claimant was properly found guilty of tampering
with a toxicological test. Carrier maintains that tampering or interfering with
this type of test is considered under Carrier's rules as a refusal to provide a
sample. For that reason, Claimant was dismissed from service for tampering
with arid, in fact. adulterating the drug test. The laboratory specifically
identified the interfering drug as the factor in making it impossible to
determine whether indeed there was drugs in Claimant's system. As a further
point, Carrier maintains that Petitioner's argument that he had no reason to
tamper with his ten results is irrel. Regardless of what his motivation
4
was, the facts are that the adultering agent was introduced into the test
specimen by Claimant, negating any effective laboratory determination. The
Board cites. as an authority to support its position, the award in Special Board
of Adjustment No. 279, Award No. 595, in which the Board stated:
It is not necessary for the Board to determine why a sample was
tampered with, but rather to prove that it was. The Board finds
that the Carrier has so proven.
Carrier believes that it has produced substantial evidence to clearly establish
Claimant's guilt of tampering with his sample. He adulterated his urine
specimen in derogation of Carrier's rules. Thus, the ultimate penalty of
dismissal was warranted.
The Board believes that tampering with a reasonable cause drug test is an
attempt to defeat the very purpose of the regulations dealing with drug abuse.
It is counter to the Federal regulations as well as the Carrier's specific and
longstanding policy and practices. Carrier's policy, in writing, states:
Tampering with a sample in order to prevent a valid test (e.g.
through substitution, dilution, or adulteration of the samples)
constitutes a refusal to provide a sample.
s
The Hoard, after a careful evaluation of the entire record, has concluded that
the evidence undoubtedly makes it apparent that Claimant was guilty of
adulterating his urine sample. There is nothing in the record or in the
handling of the urine sample to cast any doubts on this factual conclusion.
Based on this determination. there is no doubt but that Carrier was correct in
its conclusions and the dismissal was nut only appropriate but warranted under
the circumstances.
Claim denied.
1. M. Liebetman. Nwaal-Chairmsn
Det s 1. Gonl:i G. A. cmatm
Carrier Memher F.mplofee Member
Omaha.
Nebraska.
a?yG
1995
147-