The Board, upon the whole record and on the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by agreement of the parties; that the Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.
Claimant was found sleeping in a Carrier vehicle at approximately 12:50 p. m. during the duty day on December 14, 2000. At the time, the other members of the gang under his supervision were engaged in changing out a rail. Claimant replied negatively when asked if he was ill or taking medication. He gave no response when asked why he was tired. Given the work to be performed and the circumstances of Claimant's performance, Carrier exercised its discretion and required a drug and alcohol test. The test revealed the body's metabolite of cocaine ingestion.
The Organization challenged the discipline on several grounds. Procedurally, the Organization questioned the timeliness of the Carrier's action as well as the Carrier's basis for requiring the test.
While it is true that Claimant submitted his urine sample on December 14, 2000, the key date is the point in time when the test results became known to the Carrier. The record establishes that Carrier learned of the results on December 20'. Because the investigation was held on January 16, 2001, the 30-day time limit established by Rule 48(a) was not violated.
The Organization also questioned whether the Carrier followed its own policy in requiring the drug and alcohol test. Carrier's policy informs employees that it will also exercise its discretion to require testing on the basis of reasonable cause or reasonable suspicion in situations where such testing is not federally mandated.
On this record, Carrier's Drug and Alcohol Policy appears to be just that - a policy. It has not been shown to be a bargained set of restrictions on Carrier's freedom of discretion that must be strictly construed.
The Board sees no significant problems with the basis of the reasonable cause testing herein. Claimant was found asleep in the middle of his duty day when he should have been supervising the
Public Law Board No. 6237 Award No. 8members of his gang, who were engaged in safety sensitive work. When asked about his inaction, he was not meaningfully responsive.
The record also contains substantial evidence supporting the validity of the test results. No defects in the testing protocols were established.
Regarding the quantum of discipline, the record shows Claimant was previously dismissed in April of 1994 after he tested positive for alcohol and marijuana usage. He was eventually reinstated pursuant to an agreement whereby he recognized he would be dismissed for any subsequent positive drug and alcohol tests within ten years. Under the circumstances, the Board finds no proper basis for disturbing the Carrier's action.
AWARD NO. 8 OF PUBLIC LAW BOARD 6237
(Referee Gerald E. Wallin)
The facts of this case are clear and were set forth in the Organization's submission. There was no violation of any safety or operating rule ever established, as well as none that could have resulted in an accident and/or personal injury to the Claimant or others. Further, there was no other narrowly-circumscribed and verifiable individualized cause approved by the General Director-Operating Practices and the Railroad Law Department. Finally, there was no personal observation by two Mangers who may have been suspicious that Claimant was under the influence of drugs and/or alcohol in any way. As such, there was no valid basis for ordering a drug and alcohol screen under any agreement rule or company policy. In fact, the drug and alcohol testing in this case was in violation of the Carrier's established drug and alcohol testing policies.
The Majority in this case indicates the Carrier's Drug and Alcohol Policy appears to be just that - a policy. Further, it has not been shown to be a bargained set of restrictions on the Carrier's freedom of discretion that must be strictly construed. This Board Member interprets this statement to mean the Carrier has the unfettered right to ignore its established policies that it distributes among its employees, management and agreement personnel alike, and, with which, it expects their absolute compliance. With this concept I can not agree.
In effect, what the majority has done here is added to the Carrier's perceived right to change its policies at will by allowing it do so retroactively, as well. Potentially, by doing so, there can never be non-compliance with its policies by non-agreement personnel. Such a circumstance is completely unfair and an abuse of discretion. Instead of recognizing the necessity for compliance with the existing policy established with the upmost fairness and conciseness in mind, and in order to have the end justify the means, the Majority concludes here that it is okay to change the policy retroactively. In other words, all the fairness and conciseness the employees expected to receive from the policy can be eliminated by the Carrier at any time. Such a situation is completely at odds with fairness and the trust the Carrier is attempting (or should be attempting) to establish with its employees. or'9w01l?*fIL4 M-4M`ltl