The Board, upon consideration of the entire record and all of the evidence, finds that the parties are Carrier and Employee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agreement dated October 6, 1992, that this Board has jurisdiction over the dispute involved herein, and that the parties were given due notice of the hearing held.
After an extended medical leave of absence, Claimant was released to return to service by his personal physician on March 17, 1993. Prior to returning to work, Carrier required him to submit to a physical examination, which included a drug test. This exantination was conducted on March 13, 1993. Claimant was not informed that he had been approved to mark up until March 22, 1993. The Organization asserts he was unduly withheld from service and seeks compensation for the time he lost.
Additionally, the Organization cites Question and Answer No. 22 of the FRA Rules on drug testing, reading as follows:
The Organization also notes that Conrail has modified its policy regarding drug testing of employees returning to work after furlough. According to a June 30, 1993 letter, Conrail now allows employees to return to work as soon as they are determined to be medically qualified, even though the results of their drug tests are still pending. The letter indicates this change was due to "a very low rate of illegal substance positives found as a result of return from furlough drug tests . . . ."
Carrier insists Award No. 19 of Public Law Board No. 4874 is not applicable in this case. At the time of the claim involved in that Award, the Carrier asserts EMIT tests were administered by industrial nurses in Philadelphia, where that claim arose. Carrier notes the claim herein arose at Pendleton, Oregon, where the Carrier had not employed nurses. Furthermore, Carrier states it no longer uses industrial nurses for drug testing at any location. It avers that all urine samples are tested at independent, private laboratories certified by NMA.
First, with respect to the Organization's citation of Question and Answer 22 of the FRA Rules, we find that they do not have application in this case. The testing done in the instant dispute was not
prudent. Most significantly, we also agree that Carrier has an obligation to process drug tests as expeditiously as possible to prevent any unnecessary loss of earnings by the employee. At issue in this dispute is the standard to be applied in measuring whether Carrier acted expeditiously.
Carrier is not obligated to have its own facilities for drug testing wherever it has employees. A greater interest is served by protecting the employee from questionable testing. The Carrier's decision to use independent laboratories that are certified by NIDA is a reasonable decision. In this way, both the Carrier and its employees have the assurance that testing standards are being met and quality control measures are being taken. Using an independent laboratory, however, does not relieve the Carrier of its obligation to allow the employee to return to service as soon as possible. This standard was set by Public Law Board No. 4874 when, in Award No. 19, it detertrtined that Carrier has a responsibility "to take action in designing and administering a program that will not unreasonably delay the return of an employee to service as the result of being required to submit to a drug screen."' With the use of overnight delivery services and telefacsimile communications, there should be no reason why test results are not available the next day, in most cases. Because Carrier has crews going on duty seven days a week, it should not be allowed to withhold an employee from service simply because of the weekend when it is found that the drug test is negative. We might decide differently if the Carrier had demonstrated it could not, after a reasonable effort, find an acceptable laboratory with seven day a week service. But that is not the case herein.
In addition to a delay in making the results of the drug test available, Award No. 19 also involved a situation where the drug test was administered one day after the employee's physical e.\amtnation. That issue is not present in this case as Claimant took his drug test at the same time as his physical.
Accordingly, we conclude it was unreasonable for the Carrier to withhold Claimant from service from the time he took his physical and drug test on Thursday, March 18, 1993, until Monday, March 22, 1993. As for a remedy, we find that Claimant would not have been able to work assignment CHT-2, departing Pendleton at 8:55 am on March 18, 1993, but should have been ready to work the assignment departing on March 20, 1993. Accordingly, we direct that he be compensated the earnings of that round trip assignment.
It should be noted that this Board is not establishing an absolute rule that test results must be available the following day in all cases. There area number of variables that must be considered. For instance, the availability of overnight delivery is critical. Depending upon when and where the test is performed, second day delivery may be the best available. Because these are defenses available to the Carrier, it is the Carrier that has the burden of proving them.