CARRIER NO. TR-FKT-86-123
PARTIES) NORFOLK AND WESTERN RAILWAY COMPANY
TO )
DISPUTE) UNITED TRANSPORTATION UNION
STATEMENT OF CLAIM: Appeal of Brakeman N. L. Berry against dis
missal from service account of his alleged responsibility in con
nection with failing to comply with instructions to submit to a
drug screen and urinalysis as per written instructions of March
27, 1986. Formal hearing held April 16, 1986.
FINDINGS: This Public Law Board No. 94 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant testified during a formal investigation that he sometimes goes into a coma-like sleep and cannot be
awakened. That information was provided to the Carrier's Medical
Director who determined that it would be necessary for the claimant
to submit to a complete physical examination to determine his fitness for duty. The claimant and his Union representative agreed to
the physical examination.
On March 14, 1986 the claimant reported to the designated physician
and submitted to the examination with the exception of the drug
screen urinalysis. The claimant refused to provide a urine specimen for that purpose. On March 27, 1986 the Carrier learned that
the claimant had refused to submit the specimen and sent a letter
to the claimant on that date instructing him to report for a drug
screen urinalysis within five days from receipt of the letter in
order to complete the physical examination.
The claimant did not comply with these instructions and was cited
for a formal investigation by letter dated April 7, 1986. The
claimant was charged with failure to comply with the instructions
in the Superintendent's letter of March 27, 1986. Pursuant to the
investigation the claimant was found guilty and was dismissed from
the service of the Carrier.
The Carrier points up that the claimant was well aware that all
physical examinations required by the Carrier included the drug
screen urinalysis. The Eighth Circuit Court of Appeals had
addressed this specific issue and sustained the position of the
Carrier.
The Union contends that the claimant was confused and did not
realize that he was required to take the drug screen urinalysis
test. The Union also contends that the hearing was not held
within ten days of the occurrence.
Award No. 359
Page 2
The Board has examined the evidence of record and finds that the
Carrier was not aware that the claimant refused to take the drug
screen urinalysis test until March 27, 1986. Therefore, the
Board finds there is no violation of the time limit, Rule 49(C).
The claimant was not dismissed for refusing to take the drug
screen urinalysis test; he was dismissed for refusal to comply
with the Carrier's instructions dated March 27, 1986. The evidence indicates the claimant was aware that all physical examinations required by the Carrier included the drug screen
urinalysis test.
On the foregoing basis there is no justification for setting the
discipline aside.
AWARD: Claim denied.
Presto . Moore, Chairman
Uniober
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