Case No. 14
 i;
 ;Referee Fred Black-well

 l Carrier Member: L. C. Hriczak Labor Member: Jed Dodd
 ii

 !I PARTIES TO DISPUTE:





STATEMENT OF CLAIM:

 Claim of the System Committee of the Brotherhood that:





Upon the whole record and all the evidence, and after March 18, 1992 hearing in the Carrier's Offices, Philadelphia, Pennsylvania, the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Acs, as amended; that the Claimant, who was duly notified of said hearing and of her 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.


DECISION: -

'i The preponderating evidence in the whole record estab-
 lishes that the Amtrak Drug Policy for Drug Testing of ~ployees
 is both reasonable and a valid exercise of the preroga7~-i-:es e=
Public Law Board No. 5139 / Award 71o. 14 - Case ?:o. 14

Amtrak Management and that the unilaterally implemented Drug Testing Policy of Amtrak is not barred by the B._XTP.AX-BN.W-2E Agreement or prior practice.


Accordingly, the organization's request to have the Policy vacated is denied.

The Organization's challenge regarding the discharge of the herein Claimant is valid. The Carrier's proof in support of the dismissal of the Claimant on January 21, 1988 is insufficient because the Carrier failed to introduce in the January 11, 1988 hearing the chain of custody documentation regarding the retest of the Claimant on October 22, 1987_


Accordingly, the dismissal of the Claimant will- be vacated and she will be reinstated to service with the status she had as a result of testing positive for cocaine as part- of her September 10, 1987 return-to-duty physical exa>nination_ Inasmuch as the Claimant was medically disqualified from service in September 1987, there is no basis for allowing her request for lost wages. The reinstatement of the Claimant will be subject to the generally applicable return-to-duty procedures, including a drug/ alcohol screen.


OPINION

This case arises from the appeal of the Claimant, 74s. S. Steward, of the Carrier's action of January 21, 1988, whereby the Carrier dismissed the Claimant for violating the Carrier's Drug


Alcohol-Free Policy.

 The BMWE contends that the Drug Policy is impermissible

 and invalid under the AMTRAK-BMWE Agreement and asserts that the
 discharge of the Claimant for failure to comply with the Policy
 is not supported by the requisite evidence of record_ -

The specific grounds of the alleged violation of the Policy by the Claimant are that in connection with a return-to-


work physical administered to Claimant on September 10, 187, the Claimant tested positive for cocaine and did not thereafter co3-

        Public Law Board No. 5139 / Award -'7o. 14 - Case ':o.14


ply with the requirement of the Policy to rid her systen of pro
 hibited drugs within a specified period of time.
 The findings that the Claimant violated the Carrier's
 Drug Policy are based on the evidence developed in a fornal in
 vestigation conducted on January 11, 1988, in absentia, on the
 following charges:

          "Charges: Violation of National Railroad Passenger corporation (AMTRAK), Rules of Conduct, NRPC 2525 (9/85), Rules P, O, D, and L which read in part as follows:


          'Rule P...OUTSIDE ACTIVITIES ...Employees must not engage in any activity which interferes with their efficiency on or availability for duty or creates a conflict of In-

` terest ' and

 If 'Rule O REPORTING & AVAILABILITY FOR DUTY Employaies
          must report for duty at the designated time and place

I,j and must attend to their duties during assigned working
 ?I hours. Employees may not be absent from their assigned
 j i duty or engage in other than Amtrak business while on
          duty or on AMTRAK Property without the permission fron

          their supervisor...' and


i4 'Rule D COMPANY POLICIES AND PROCEDURES --- Employees
 I must understand and obey Company and department poli
 I vies, procedures and special instructions, and PERS 19
          and 19.2...' and


          'Rule L...OBEYING INSTRUCTIONS ...Employees must obey in-i structions, directions, and orders from AMTRAK supervisory personnel and officers except when confronted by a'

l clear and immediate danger to themselves, property, or,
          the public...'


          SPECIFICATION: On September 10th, 1987 a Return to Work-

;; Physical was, performed in your behalf and which the
          urinalysis results showed positive for cocaine, and that,

          you were instructed to rid your system of that or any

          other prohibited drug by October 23, 1987. Wherein Ms.

          Steward provided another sample for testing on October

,. 23rd, 1987 and that test showed positive for cocaine."
 Following the January 11, 1988 hearing, findings of
 guilt of the foregoing charges ,were _made over the signature of

                              3

        Public Law Board No. 5139 / Award No. 14 - Case No. 14


Hearing Officer F. J. Mulvey on January 21, 1988; assessment of discipline of dismissal was made on the same date over the signature of Acting Director Track Production, C_ A. Campbell (Carrier


Ex. 2)_
 i
 Background Facts
 '.I The discharge action in this case involves Claimant Ms_.
 ;i Sandra Steward who was administered a return-to-duty physical ex-;
 Ij

 ~~ amination on September 10, 1987. The examination included a drug
 screed which tested positive for cocaine- The Carrier notified

 ' R
 i' the Claimant by letter dated September 22, 1987 that she was aged-,

~, ically disqualified from service due to the positive finding for[ il

cocaine and that she was required by Amtrak's Drug Policy to rid her system of prohibited drugs within a specified period of time-


                                                            The Carrier's letter offered the Claimant the option to be re-. i tested within thirty (30) days from the date of the letter or, ifs eligible, to enter the Employee Assistance Program. The Claimant elected the thirty day retest option, whereupon, on October 22=

                                                            f


1987, she was administered a second drug test that was also posi
 k tive for cocaine. The second positive test for cocaine resultedb in charges, a hearing thereon, and discharge of Claimant for vio-~ lating Company rules and the Amtrak Drug Testing Policy.

 The Drug Policy is designated as PERS 19 and is entitled] "DRUG AND ALCOHOL TESTING OF EMPLOYEES^. Issued unilaterally by I Amtrak under date of August 15, 1987, the Policy, as pertinent to this case, provides the following: 4
        Public Law Board No. 5139 / Award ?lo. 14 - Case 3:o. 14


    "SUBJECT: DRUG AND ALCOHOL TESTING OF EMPLOYEES


        V- RETURN-TO-WORK AND PERIQDIC PHYSICALS


            A. Policy


                Except as specifically provided in an applicable labor agreement, all employees returning to work after an absence, for any reason other than vacation, of 30 days or more will be tested by urine: sample for drug presence as a part of a return-to-: work physical. All required periodic physicals. and physicals to determine fitness for duty will; also include a test for the presence of drugs='

" Prior to giving a sample, the employee shall com-:
                plete a form specifying all drugs or medications

                used within the previous 60 days. The formm will!

                include notice that the urine sample will be test

j: ed for drug presence and that a confirmation test
 will be performed at Amtrak's expense if the first;
 ]test is positive.

 ! B. Confirmation Testing

 ;. If the first test of a urine sample indicates the;
 (presence of drugs, a confirmation test will bej
 conducted at Amtrak's expense on the saime sample
 at a medical facility selected by Amtrak using]
 !another method that is specific for the substance:
 i,detected in the first test- The employee is en
 titled to receive a copy of the laboratory report.

    If the confirmation test is negative, the eanployeewill be paid for any lost wages incurred during the time she/he was withheld from service because of the need to await the results of the confirama-, tion test.


C. Conseouences of Positive Test Result
    If a test conducted pursuant to this Section V is. positive, the Personnel Department will notify the? employee that she/he is medically disqualified. The employee must, within 30 days, either be re-tested by an Amtrak nurse or a medical facility designated by Amtrak or, if eligible, enter the Employee Assistance Program (EAP). Except where the provisions of an applicable labor agreement specify different procedures, any employee entering the EAP shall be governed by the provisions of Section PERS 39 of the Procedures Manual.


    If an employee who has had a positive test dces


                  5

        Public Law Board No. 5139 / Award No- 14 - Case ?:o. 14

not enter the EAP and elects to be retested and
 the retest result is positive, the employee shall
 be subject to dismissal and shall not be entitled°
 to enter the EAP_ A confirmation test shall be
 conducted at Amtrak expense on any sample that has!
 initially tested positive in this retest.
 When an employee who has tested positive during a
 return-to-work or periodic physical enters the l_
 EAP, the employee will undergo counseling/treat
 ment as determined by the EAP counselor- When the;,
 counselor decides the employee is able to return"
 to duty, the employee must take a new return-to
 work physical before presenting himself or herself
 for duty. If the employee tests positive on the
 retest, she/he shall be subject to dismissal for
 failure to follow-instructions and shall not bed
 eligible to reenter the EAP_
 An employee who has tested positive for drugs andf
 is returned to service after achieving a negative!.
 Es test result shall, as a condition of being return
 I~ ed to service, be subject to testing for drugs 1,
 and/or alcohol by breath or urine sample, at least
 once each calendar quarter for a period of two
 j years. If the employee tests positive for the
 li presence of drugs or alcohol during such subse
 j; quent tests, or during any future return-to-works

          or periodic physical, the employee shall be sub

          ject to dismissal and shall not be entitled to

          enter the EAP.

          D. Failure to cooperate with Testincr

          An employee who refuses to provide a sample or to

          cooperate in the testing procedures will be treat

          ed as if she/he had a confirmed positive test re-1

          sult. However, an employee who intentionally in

          terferes with the administration or integrity of al

          test sample shall not be entitled to enter the F.AP~

          and will be subject to dismissal for dishonesty.'

          Positions of the Parties

The parties join issue in this case both on the validity:
 of the Amtrak Drug Testing Policy and the validity of Amtrak's

 r discharge of the Claimant for violating that Policy.
 The specifics of Amtrak's position new follow.
 6
        Public Law Board tlo. 5139 / Award No. 14 - Case No. 14


rl 1) Amtrak has a managerial right to establish and en-
 force reasonable medical standards, including requiring that Ea
 ployees' urine samples be tested for drugs during return-to-duty

 physical examinations.
 I
 i 2. The Federal Legislation that brought Amtrak into
 existence, the Rail Passenger Service Act, authorized Amtrak to
 establish standards for the operation, inter alia, of a safe in
 tercity railroad passenger service. In consequence, Amtrak is
 obligated by its enabling legislation to establish reasonable
 medical standards to ensure the safety of its Eaployees and the
 public.
 3. The reasonableness of the policy is evidenced by such considerations as the linkage between the use of prohibited
. drugs and the risk of impairment of work performance. f

4. The tests used by Amtrak to detect the presence of prohibited drugs in an Employee's system are effective and reliable.

5. The dismissal of Claimant Steward is supported by the hearing evidence and the conduct of the hearing in absentia; was proper in the circumstances of this case.

The specifics of the Organization's position now follow (page 2, Organization Submission) .


      "1. The unilateral implementation of the Amtrak drug testing

          program represents a change in the working conditions in

          violation of the collective bargaining agreement and the

          Railway Labor Act.


      2. The Amtrak program fails to set forth sufficient e:.-


                              7

Public Law Board No. 5139 / Award No. 14 - Case No. 14
 forcement safeguards to ensure that it is not applied
 subjectively and discriminatorily.
 3. Amtrak's unilaterally implemented program does not in
 clude sufficient scientific and procedural safeguards
 E (specimen collection, chain of custody, lab certifica
 tion, technician qualifications, etc.) to guard against
 false positive test results.
 4. Amtrak's drug testing program considers positive test
 results as discipline matters rather than medical mmat
 ters."
 5. In regard to the dismissal action under review in this
 case, the Organization contends that the Carrier failed in its
 burden of proof of the charge that the Claimant tested positive
 i; for drugs for the following reasons (Page 20, Organization's sub
 mission):

          ^- The Carrier failed to present the technician who per-

ij formed the tests as requested by the Union,

          - The Carrier failed to present evidence relative to the Chain of Custody documents as requested,


          - The Carrier failed to show that all of the required!

~j testing procedures were followed,"
 !j FINDINGS AND DISCUSSION
 !; After due study of the whole record, it is concluded and=
 il found that the record establishes that the Amtrak Policy for Drug
 Testing of Employees is both reasonable and a valid exercise ofd

 I~ the prerogatives of Amtrak Management and that the unilaterally:: ii implemented Drug Testing Policy of Amtrak is not barred by the :f i AMTRAK-BMWE Agreement or prior practice-1

 j It is further found that the dismissal of the herein

 1 In arriving at this decision, the willingness of the H~W to negotiate on the subject of a Drug Policy has not been weighed as evidence against the validity of the BMWE position in this dispute.

                              s

Public Law Board No. 5139 / Award No. 14 - Case ?:o. 14

    Claimant for failure to comply with the requirements of the policy is not supported by substantial evidence in the record as a whole, because the Carrier did not introduce in the hearing the chain of custody documentation regarding the retest of the Clai'n-


·· ant on October 22, 1987.
 Accordingly, the dismissal of the Claimant will be va.: cated and she will be reinstated to service with the medically H disqualified status which she possessed in September 1987, sub-

 ject to all conditions provided in the reinstatement directive-

 The Amtrak Drug Policy Is Valid
The issue of the validity of the testing of Employees for the presence in their systems of prohibited (legally con-

 trolled) drugs, has been debated for the last decade or two ins C the context of the use of legally controlled drugs by a large

 1segment of our population for so-called recreational purposesf

 In this atmosphere it is not surprising that the arbitral and judicial decisions on drug issues have produced mixed resultsIn the railroad industry, where collective bargaining agreements! cover most or all of the Employees subject to drug testing, different rulings may be the result of different language in 'the! labor agreements, as well as from forums having different percep1 dons of the same or similar facts and agreement language, and

 v' from forums having different views on what facts should be act tionable under a drug policy.

          The point here is that although all of the cited authcr-


                              0

        Public Law Board No. 5139 j Award No- 14 - Case No- 14


ities have been examined, studied, and given appropriate =xrsuaj! sive weight, the herein decision is the result of independent j) analysis and assessment of the whole record2 and not the result i! of ascribing governing precedential weight to any of the cited authorities-

 ji In regard to the four main BMWE arguments that challenge
 Amtrak's Drug Testing Policy, supra pages 7 & 8, such arguments,
 individually and in the aggregate, have been studied and found
 unpersuasive and lacking in record support.
 i
 j The record contains no persuasive evidence or argument
 j! that the disputed Drug Policy is barred by the AMTRAK-BMWE Agree
 ment and prior practice. Also, since the disputed policy is
 ij deemed reasonable, it follows that the implementation of the Drug

 y
 Policy is a valid exercise of the prerogatives of the Amtrak Management.

 j The Board further finds that the Drug Policy does not
 r
 represent a change in the working conditions of the BMWE Employ
 ees, as contended by the BMwE. The Organization submits, for ex
 ample (page 22, Organization's Submission), that because Amtrak's:
 j detection of drugs had previously been limited to direct observa
 i tion by supervisory personnel, "reasonable suspicion^, and the
 possession or use on the property of a proscribed substance, the
 i

 2 Agreement provisions, evidence, argument, and prior authorities. i
                            1 0 -

        Public Law Board No. 5139 / :ward No. 14 - Case ?:o. 14


change to the current detection procedures is a major change in
 the Employer-Employee relationship that cannot beimplemented
 .; without first negotiating under Section Six of the Railway Labor
 . · Act.
 '1 The fact that Amtrak's prior means for detecting drugs
 1
 ;i may have been adequate in the past, does not mean that Amitrak is
 limited to the use of these means in perpetuity. There has been
 il a demonstrable increase in the illegal use of legally controlled

 if _
 i; drugs and the potential for adverse impact on the safety of Railroad Employees and the public is clearly evident. The disputed:
 jf change in the detection methodology is responsive to the change;

 'f

 f~ in the magnitude and nature of the problem and hence, the change[
 i
 is not deemed to be a major change in the Employer-Employee re-

 ~j lationship.

 '! t
          Moreover, the Board does not share the Organization's_


f,
 concern that a Board ruling that allows the disputed policy to f ,i remain in place, because the parties' Agreement does not expressly prohibit the policy, would open the door to the unilateral i3a plementation of unwarranted intrusions such as strip searches which are also not expressly prohibited by the Agreement (page i

 ~~ 24, Organization Submission). The omission of a contract prohi-E
fi I
 ~j bition of the Drug Policy is a condition precedent to the Imple
 mentation of the policy in dispute; however, the ultimate stand-=
 and on the permissibility of the Drug Policy is whether it meets
 the requirements of the rule of reason which is an arbitral prin
 11
 Public Law Board No. 5139 / Award No- 14

 - Case No. 14

    ciple commonly applied to matters not expressly prohibited by


1 contract. The Amtrak Drug Policy is found reasonable and hence
 I
 permissible under the Agreement, but this finding of permissibility is based both on the absence of an express prohibition of the policy in the Agreement and a separate finding that the policy meets the requirements of the rule of reason.

          The Board further concludes that the record evidence and

I BMWE arguments do not support the BMW-E assertions that the Drug Policy does not include sufficient safeguards to guard against false positive test results. Even though a false positive finding may occur in the initial test by the EMIT method, the con-

 11 firmation test performed by the GC/M53 method eliminates thel

 ,' initial false positive from consideration in the administration

 of the Policy.

 provide sufficient safeguards to application, the Board notes that that is inherently discriminatory

 be applied with bias,

 per se discriminatory

 exists for the Policy to be applied in a discriminatory manner in? individual cases and consequently, the right to claim alleged3
 Ij discrimination is a right that may be asserted on behalf of any Employee to whom the Policy is applied.

                  As to the argument that the Drug Policy does note


ensure its non-discriainatorythere is nothing in the Policy: or that invites the Policy tol

 notwithstanding the lack of any

 the Drug Policy, the possibility

 However,

 feature in

 3 Gas chromatography/pass spectrc-et=-y.
        Public Law Board ':o. 5139 / Award No. 14 - Case No. 14


    The Board also finds unpersuasive the BKWE argument that the administrators of the Drug Testing Policy treat positive test results as discipline matters rather than medical matters. It is true that an Employee may become subject to discipline under the Policy, but this occurs only after the Employee has been given an, opportunity to comply with the Drug Policy. The fact that disci

. pline may be dispensed under the Policy, does not make the Policy unacceptable; indeed, if the Drug Policy did not provide disci-

 i pline for failure to comply with the Policy, it is probable that. the effectiveness of the Drug Policy would be seriously and pos=: sibly fatally compromised.
 Finally, it is found that the Carrier's use of the re-! turn-to-duty physical examination to detect the presence of prohibited drugs in its Employees is an altogether appropriate use of this examination. If society becomes endangered by a new, highly contagious disease that could be only be detected by anal-.
 :; ysis of body fluids, there would be virtually no argument about: the need to detect the disease by return-to-duty physical examin-, ations and to take action to restrict its impact in the work--
 .I place. So, too, the use of a return-to-duty physical examination to detect the presence of a prohibited drugs) in the system of~ an BMWE Employee is an acceptable use of this examination; such examination provides the possibility of preventing the Employee with drugs in his system from hurting himself or others in t_he workplace and from causing damage to property. 1 3
        Public Law Board No. 5139 / Award ?:o. 14 - Case No. 14


The unilaterally established F-trak Drug Testing Policy is thus found reasonable and within the rights of the Fanagement to establish without a concurring agr5eenent from the BMWE.4


                Inadeouate Proof of Claimant's Guilt

As previously indicated and found, the dismissal of the herein Claimant, Ms. Sandra Steward, for failure to comply with the requirements of the Policy is not supported by substantial evidence in the hearing record as a whole.

The fact that the charges against Claimant were heard '! in absentia does not result in any procedural defects. The Carrier used Certified Mail to notify the Claimant of charges and of

i a trial scheduled thereon for a specified date; copies of the( green receipt cards bearing the signature of Claimant to evidence
 1
 .; her receipt of the Certified Mail were entered in the hearing

s j record as Exs. 2, 4, and 6. This evidence shows that the Carrier"

:; complied with the Agreement requirements regarding notice ofi, l charges/hearing; consequently, the trial of Claimant in absentia


it in the January li, 1988 hearing cannot be said to have violatedfi
 Ia the hearing provisions of the Agreement.
 .t

          As regards the merits of the case, the Organization's"


j! argument overreaches somewhat in describing the scope and nature;

 This ruling disposes of the organization's contention that
 the Antrak Drug Policy is invalid; consequently, although all
 arguments advanced by the Organization have been studied, it is
 not necessary to discuss and rule on all of such arc unents in
 this Opinion.
 is
        Public Law Board No- 5139 / Award 2:o. 14 - Case No. 14


of the evidence that was required to be proffered by the carrier in order to support the charge in this case- However, the Organization's targeting the chain of custody documentation as essential evidence is well founded- The reason is that the chain of i custody documentation in a case charging the improper use of drugs, is part of the minimum evidentiary proof that is required upon demand by the Claimant's representative, even if the accused' i does not appear in the hearing to defend against the charges-

          During the hearing against Claimant on the subjectE


j~ charges, the union representative requested that the chain ofj
 s` custody documentation be provided. Such documentation was notl provided and the hearing was not ordered to remain open to re-`

 ji ceive such documentation. The chain of custody documentation was Ii
 'j not provided to the organization until June 22, 1988 (Carrier Ex-

 hibit No. 8) , which was five (5) months after the close of the
 .i
 11 hearing record and the findings of guilt/dismissal on January 11 and 21, 1988.

          Evidence omitted from the hearing record, absent stipu-

i
 lation, cannot be submitted for consideration by the Board after
 the hearing record is closed and actions regarding findings of;
 guilt and dismissal are taken. The chain of custody documenta
 tion is absent from the hearing record concerning claimant Ste
 ward and therefore, it cannot be said that the hearing record
 contains substantial evidence to susport the Carrier's findings
 that the Claimant was guilty of the charge of not comply=ng with
 1 5
        Public Law Board No. 5139 / Award No- 14 - Case 2:o.14


    the Amtrak Drug Policy.

In assessing these facts the Board concludes and find= that the appropriate disposition of the appeal of Claimant Steward is to set aside the dismissal of the Claimant and to direct her reinstatement to service in the status that she had as a result of testing positive for cocaine as part of her Septewher 10, 1987 return-to-duty physical examination. Inasmuch as the Claim-


ant was medically disqualified from service in Sept,-BU.ber 198?, i

there is no basis for allowing her request for lost wages. The ,reinstatement of the Claimant will be subject to the generally applicable return-to-duty procedures, including a drug/alcohol


f~
 screen.

 of
          ACCORDINGLY, on the basis of the record as a whole, the

~t
 Board concludes and finds that the Organization's challenge to

 i the validity of the Drug Testing Policy is not supported by the

 :t
 record and the claim in this regard will be denied-

 H

The Board further concludes and finds that the Organization's challenge to the Carrier' s, proof of the charge against the Claimant is valid because of the absence of the chain of custody documentation from the hearing reocrd and accordingly, the Claimant will be reinstated to the status she held in September 1987; compensation for lost wages will not be allowed.


AWARD:

          In view of the foregoing, an3 based on the record

          as a :;hole, it is concluded and fo·.-nd that the Carr ie= `s

          16

        Public Law Board No. 5139 / Award No- 14 - Case No- 13


            Drug Testing Policy is reasonable and not violative of the parties` Collective Bargaining Agree-ment.


          It is further concluded and found that the hearing evidence was deficient as to the required chain of custody documentation and accordingly the Carrier is hereby directed to reinstate the Claimant to service in the status she held in September 1987_ Compensation for lost wages is not allowed.


          The Carrier shall comply with this Award by July 9, 1992.


                The Board will retain jurisdiction of this imatter

,`; for sixty (60) days after the Carrier has complied with
 E' the reinstatement directive of this Award- in addition,
          if Claimant is dismissed under the Drug Policy in con

          nection with the implementation of this Award, the mat

          ter, if protested, may be progressed to this Board with-,

          in sixty (60) calendar days after said dismissal.


                BY ORDER OF PUBLIC LAW BOARD NO. 5139.

i.

 Lj

 f

 Fred Blackwell, Neutral Me-ber
 I
                                                            i


~~ L_ C. Hriczak, Carrier Member ed Dodd, LaL-or Member
 'i
 I : `
 Executed on ~~ 2-- , 1992
 w

 I' BMT-TE\5139\14-14.609

                              17