PUBLIC LAW BOARD NO. 7564
Case No. 121/Award No. 121 Carrier File No. 10-21-0082 Organization File No. C-21-D070-3 Claimant: T.P. Reuter
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION )
By leter dated November 5, 2020, T.P. Reuter received a Rule 1.5 Dismissal, effec�ve immediately, “for a posi�ve test for a controlled substance from a follow up test collected at or near McCook, NE.” The Claimant allegedly violated BNSF Policy, Rules, and Procedures on the use of Alcohol and Drugs effec�ve September 1, 2014, and MWOR 1.5 Drugs and Alcohol.
The Organiza�on’s December 23, 2020, claim from Jim L. Varner, Vice General Chairman, appealed the discipline. The Organiza�on requested that the discipline outlined in the Carrier’s November 5, 2020, leter be “removed as…excessive and... removed from [Claimant’s] records in accordance with Rule 40 of the current agreement, and he be reinstated with all monies which include all straight and over�me lost out on, any lump sum payments due… All vaca�on earned during this dismissal and all medical out of pocket monies and benefit losses.”
By leter dated August 17, 2020, the Claimant received no�ce to atend an
“[I]nves�ga�on at 0900 hours, Tuesday, August 25, 2020, at … McCook, NE … to develop the facts and circumstances concerning your alleged posi�ve test for a controlled substance from a follow up test collected at/or near McCook, NE on August 5, 2020 at 0920 hours and alleged viola�on of BNSF Policy, Rules, and Procedures on the use of Alcohol and Drugs.” The inves�ga�on, postponed by mutual agreement on two occasions, was held on October 21, 2020, at 1000 hours in Cheyenne, WY.
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The Carrier avers that the inves�ga�on was fair and impar�al, and the record proved by substan�al evidence that Claimant violated BNSF Policy, Rules, and Procedures on the use of Alcohol and Drugs effec�ve September 1, 2014, and MWOR 1.5 Drugs and Alcohol. Claimant conceded he used a CBD product. His dismissal was in accordance with the Carrier’s Policy for Employee Performance Accountability (“PEPA”).
The Organiza�on asserts that Claimant’s dismissal is excessive and without merit due to the Carrier’s procedural errors when collec�ng Claimant’s drug specimen(s). Moreover, the Carrier failed to meet its burden of proof because the record lacks sufficient facts and evidence.
The following facts are not at issue. On March 20, 2020, Claimant tested posi�ve for a controlled substance a�er taking a random Federal Railroad Administra�on (FRA) mandated test. A�er signing a condi�onal waiver admi�ng guilt, Claimant received a Level S Actual Suspension with a three-year review period.1 Pursuant to BNSF Policy, Rules, and Procedures on the use of Alcohol and Drugs, Claimant was subjected to a minimum of six unannounced drug tests during the first year following the ini�al posi�ve test.2
According to the Carrier, on August 5, 2020, Claimant’s urine tested posi�ve when administered a follow-up drug and alcohol test. As a result, Claimant is charged with viola�ng BNSF Policy, Rules, and Procedures on the use of Alcohol and Drugs effec�ve September 1, 2014, and MWOR Rule 1.5.
BNSF Policy, Rules, and Procedures on the use of Alcohol and Drugs state that notwithstanding any statute, ordinance, regula�on, or other law that legalizes or decriminalizes the use or possession of marijuana, …the Carrier’s policy prohibits an employee from repor�ng for duty or remaining on duty or on the Carrier’s property with any detectable amount of marijuana in his or her body.3 Further, MWOR Rule 1.5 precludes the following:
the use or possession of intoxicants, over-the-counter or prescrip�on drugs, narco�cs, controlled substances, or medica�on that may adversely affect safe performance is prohibited while on duty or on company property,
except medica�on that is permited by a medical prac��oner and used as prescribed. Employees must not have any prohibited
1 Discipline Sec�on, Inves�ga�ve Transcript (“Tr.”).
2 Follow-up tes�ng is a Department of Transporta�on requirement outlined in the Carrier’s policy.
3 Employer Exhibit 5, Sec�on IV(E).
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substances in their bodily fluids when repor�ng for duty, while on duty, or while on company property.4
This case presents a unique set of facts for the Board’s considera�on. The collector agent at the test site iden�fied Claimant’s ini�ally sealed sample as Specimen #1899914. Claimant signed a form that the specimen was sealed in his presence and not adulterated in any manner. Approximately 15 to 20 minutes a�er Claimant le� the test site, Claimant was recalled to the tes�ng site and informed that the seal on the first specimen had torn.
Claimant tes�fied that a�er returning to the tes�ng site, the Carrier’s collector agent requested Claimant ini�al a second sealed specimen. The Carrier’s collector agent iden�fied the second sealed drug specimen as Specimen #6901248. The Carrier’s collector agent again asked Claimant to execute a form ates�ng to the fact that the specimen was resealed in his presence and not adulterated in any manner. Claimant tes�fied that although he was not present for the sealing of the second specimen, it was his understanding, based on what the Carrier’s collector agent explained to him regarding the first form, that if he failed to execute the form, his refusal would cons�tute an admission that the specimen was posi�ve for drugs.5 Unfortunately, the Carrier’s collector agent failed to advise Claimant that under these unique circumstances, Claimant had a right to refuse to sign the form, and his refusal would not cons�tute an admission.6
The Carrier failed to produce the individual who collected the drug specimen(s) as a witness. As a result, it is unclear from the record what specimen collec�on procedure was used to collect the second sample. It is unclear whether Claimant was called back to ini�al the botle of the original test specimen with a new sealing, whether Claimant was signing off on a specimen in a new botle with a new sealing, or whether Claimant was signing off on another employee’s drug test.7
The Carrier’s witness, Julie Murphy, Manager of Medical and Employee Health Services, conceded that she had no first-hand knowledge of the methodology of the collec�on procedure for the second specimen. She acknowledged that neither the Carrier’s protocol nor the Regula�ons address how to handle a situa�on where a seal is broken or torn shortly a�er collec�on. 8 However, she admited that if a specimen with a torn seal arrived at a lab, it would be rendered void.
Despite Claimant’s admission that he had consumed a CBD concentrate, and the Boards considera�on of the Carrier’s safety protocols, Claimant raises legi�mate objec�ons regarding
4 Carrier Exhibit 6.
5 Id.at 32, 39, 48. Carrier Exhibit 7.
6 Id.
7 Tr.42.
8 Id. at 29. She also acknowledged that she had no way of knowing whether the specimen tested by the lab was the specimen which had the broken seal or if it was a second specimen. Tr. 30.
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the test collector’s adherence to test protocols and procedures.9 Based on the failure of the Carrier to present the test collector as a witness the Carrier has failed to prove by substan�al evidence that the applica�on of the test followed the Carrier’s procedural requirements and Federal Regula�on 49 CFR Part 40.10 As a result, the Carrier has failed to prove by substan�al evidence that Claimant engaged in the conduct as charged.
Claim sustained.
This Board, a�er considera�on of the dispute iden�fied above, hereby orders that an
Award favorable to the Claimant be made with the discipline to be removed from the Claimant’s records. The Carrier is to make the Award effec�ve on or before thirty (30) days a�er the Award is adopted.
Zachary Voegel, Organiza�onal Member Joe Heenan, Carrier Member
Melinda Gordon, Neutral Referee
DATED: June 20, 2023
9 Id. at.40. Claimant acknowledged that he thought there was a possibility that the test would come back posi�ve because CBD concentrates may contain THC.
10 Id. at 11.
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