as on May 2 Claimant was taking an annual physical, Carrier had no right to ask him to submit to a drug and alcohol test. The Organization further contends that the smell of alcohol detected on Claimant actually came from cough syrup Claimant had taken earlier that morning and that several individuals did not smell alcohol on Claimant's breath. The organization also asserts that the revised Drug and Alcohol Free Workplace Policy ("Policy") effective January 1, 1995 was not given to the Claimant until February 28, 1995,-and from then until May 2, 1995 no attempt was made by Carrier to educate the employees as to the changes in the new Policy or educate them pursuant to the mandates of Article XII -of said Policy. Finally, the organization contends that Carrier committed numerous procedural errors and notes that Claimant is a long-term employee of the railroad and has a blemish-free work record. The Organization requests that Claimant be returned to service, albeit subject to the mandatory EAP, with seniority unimpaired and be compensated for all lost wages and benefits.
The Board finds that there is substantial evidence in the record to support Carrier's assertion that it had reasonable suspicion to test Claimant on May 2. Claimant was on duty and had traveled to Medical Services in a Carrier vehicle. While it is true that on that date Claimant was only to undergo an annual physical, during the course of that physical several individuals detected alcohol on Claimant's breath and observed other behavior
which they reasonably believed to be indicative of intoxication. In these circumstances, reasonable suspicion was created, permitting Carrier to subject Claimant to a drug and alcohol test.
The record further reveals that Claimant was in violation of the Drug and Alcohol Policy when he refused to submit to a test as directed. On a number of occasions on the date in question several different individuals explained to Claimant that he was obligated to take a drug and alcohol test. It was further explained to Claimant that if he did not take a test, it was a violation of the Policy and the equivalent of admitting his guilt. Nonetheless, Claimant took no drug and alcohol test whatsoever on the date in question. In these circumstances, Claimant cannot successfully contend that his difficulties were caused by his not being given adequate notice of the Policy.
Carrier has established that it did not act arbitrarily or capriciously in terminating Claimant. Refusal to take a drug and alcohol test when properly instructed to submit to such a test is a serious offense. The Policy is clear that employees must comply with a reasonable suspicion test and failure to do so may result in termination. While the Board is mindful of the arguments of mitigation so well argued by the organization, were it to sustain this claim it would perhaps encourage others to refuse to undergo a test when required to do so. Finally, the Board finds no procedural defects by carrier which would justify overturning otherwise valid discipline.
Labor Member's Dissent
to
Award No. 88
Public Law Board 4950