PARTIES ) AMTRAK SERVICE WORKERS COUNCIL
 TO )
 DISPUTE ) NATIONAL RAILROAD PASSENGER CORPORATION

 STATEMENT OF CLAIM









compensate Claimant for all time lost beginning on July 23, 1988
 and continuing until reinstated, and cleanse Claimant's service
 record of any reference to this discipline. (Carrier file ASWC-D
 2051> ASWC file 390-B8-104-D).
 OPINION OF BOARD
 As discussed further below, Claimant in this matter, a train attendant in the Cassier's service since September 14, 1987, was tested under the Carrier's return-to-duty, drug testing policy after having been on a leave of absence due to a back injury. Claimant was dismissed from service by letter dated July 22, 1988 for violations of Carrier Rules A, D and L for failing to rid her system of cannabinoids as instructed afar her return-to-duty ding screen was positive and further after Claimant did not provide a negative sample within 30 days.
The threshold dispute in this matter (as in the other similar cases currently pending before this Board) concerns the propriety of the Carrier's decision to require certain employees represented by the Organization, who are not subject to hours of Service
 ' SBA 1020, Award 31








              examinations of its employees. These examinations are conducted

              before an employee is hired, when as employee returns to work

              from a non-vacation absence of more than 30 days, and, for

              employees covered by the Flours of Service Act, ..., periodically.

              The medical standards and tests administered in these physical

              examinations have changed from time to time with medical -

              developments, ....


              Since the mid-1970's, the physical examinations have routinely included urinalysis, although a drug screen was not initially part of the urinalysis. A drug screen was performed only when, in the judgment of the examining physician, the employee may have been using drugs. In April, 1983, Amtrak began

                              SBA 1020, Award 21

                              P. Miles

                              Page 3


requiring a drug screen as part of the u;:nalysis in pre-employment
 and -tturn-to-work physical examinations. In July, 1985, Amtrak
 began requiring a drug screen as part of every mandatory physical
 e :ay=.nation, including periodic physicals.

 Amtrak also requires urinalysis drug screening outside the conic xt of a medical examination when there exists reasonable suspicion that an employee may be once: the influence of alcohol or a dru s. The record suggests the railroad began testing based on reasonable suspicion less than a year before this lawsuit was filed; previously, the railroad relied on supervisory observation to detect drug or alcohol impairment.

 A rule of conduct, unilaterally implemented by the railroad, prohibits on-duty employees from working while under the influence of alcohol or drubs. That provision, asserted by Amtrak without contradiction by the unions to be long-standing, was known in prior years as Rule C and stated as follows:

      Reporting for work under the influence of alcoholic beverages or narcotics, or the use of alcoholic beverages while on or subject to duty or on Company property is prohibite d.


In early 1985, Amtrak revised the rule, now designated as Role G, to state as follows:

      Employees subject to duty, reporting for duty, or while on duty, are prohibited trvm possessing, using, or being under the influence of alcoholic beverages, intoxicants, narcotics or other mood changing substances, including medication whose use may cause drowsiness or impair the employee's responsiveness.


On April 15, 1986, Amtrak issued a 12-page document detailing its policy and procedure for drug and alcohol testing of employees covered by the Hours of Service Act On January 1, 1987, the railroad issued a similar document for employees not cove:-..3, by the Hours of Service Act .~

      The main difference in the two documents concerns post -

accident testing, which is authorized for employees covered by the
 Hours of Service Act The documents state than an employee who
 tests positive for drugs or alcohol is subject to discipline and shall
 not be allowed to work until testing negative. An employee who
 tests positive three times in a row is subject to dismissal

      In a separate notice to employees covered by the Hours of

Service Act, Amtrak warned that the urine test may detect off'-duty "
 drug use, without any on-the-job impairment, for up to 60 days.
 Unless the employee demands a blood test, a positive urinalysis
 "will support a presumption that you were impaired at the time the
          SB A 1020, Award ? I P. VLiles Page 4 sample was taken.'. a


          [Footnote =1] On August 15, 1987, while this lawsuit was pending, Amtrak revised its policy and advised employees that blood test results would not longer be relevant in a Rule G case because "Amtrak considers the mere presence of a drug in an employee's system as a violation of Amtrak Rule G. Hence, the objective of Amtrak's Drug/Alcohol Testing Program is not to detez-aine influence, but to determine whether or not a prohibited substance is present is an employee's system."

While the Court case addressed the broad spectrum of the Car.:er's drug testing policy, the focus of the cases before this Board is upon the re:um-todury aspect of that policy as it applies to those employees represented by the Organization. That portion of the , policy (PI<RS 19 (August 15, 1987 ea.-irion at 6-8)) states, in relevant par.:

          V. Return-To-Work and Periodic Ph : is c~ls


              A. PoLic~


                Except as specifically provided in an applicable labor agreement, all employees returning to worms 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 . ...

              B. Confirmation Testing


                  If the first test of a urine sample indicates the presence of drugs, a confirmation test will be conducted at Amtrak's expense on the saint sample at a medical facility selected by Amtrak using another method that is specific for the substance detected in the first test The employee is entitled to receive a copy of the laboratory report If the confirmation test is negative, the employee will be paid for any lost wages incurred during the time she/he was withheld from se-vice because of the need to await the results _ of the confirmation test


            C. onceauenc e n positive Test Result ,


                If a test conducted pursuant to Section V is positive, the Personnel Department will notify the employee that sheltie is medically disqualified. The employee


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                                      Page S


                  must, within 30 days, --? her be retested by an Amtrak nurse or a mica! facility designated by Amtrak or, if eligible. e:aer the Employee Assistance Program (EAP) . ...


                  If an employee who has and a positive test does not enter the EAP and elec5 to be retested and the retest result is positive, the employee shall be subject to dismissal and shall not be entitled to eater the EAR A confirmation test saga be conducted ac Amtrak expense on any sample _.at has initially tested positive in this recess. -


                  When an employee who has tested positive during a return-to-work or periodic physical enters the EAP, the employee will unccro counseling/Ceatment as dete.-minted by the EAP counselor. When the counselor decides the a^ployee is able to return to duty, the employee must take a new re^.tn-to-work physical before presenting himself or herself for duty. If the employee :esm positive on the retest, she/he shall be subject to dismissal for failure to follow instructions and shag not be eIia ble to reenter the EAR


                  An employee who has tested positive for drugs and is returned to service after achieving a negative test result shall, as a condition of being returned to service, be subject to testing for drugs and/or alcohol by breath or urine sample, at least once each calendar quarter for a period of two years. If the employee tests positive for the presence of drugs or alcohol during such subsequent tests, or during any future return-to-work or periodic physical, the employee shall be subject to dismissal and shall not be entitled to enter the EAP.


              D. Failure to .pop=t,r yvirh Testing


                  An employee who refuses tp provide a sample or to cooperate in the testing procedures will be treated as if she/he had a confirmed positive test result However, an employee who intentionally interferes with the administration or integrity of a test sample shall not be entitled to eater the EAP and will be

                  subject to dismissal for dishonesty. ._

The parties' arguments frame the collision of two well-established doctrines. In this case, the asserted right of the Organization to check the Carrier against unilateral promulgation of politics in conflict with the Agreement or past practices collides with the
                                      SBA. 1020, Award ZI P. vliIes Page 6


Carrier's asserted right to make fitness and ability determinations for its employees.
 From a practical standpoint, the area of rerun-to-duty drug testing, indeed, the entire issue of drug ~-sting, is one that cries out for the patties to reach agreement at the bargaining table. In that fashion, mutually agreed upon policies can be developed is derail, standards and guidelines set, testing procedure checks and balances established and, frost a contract administration viewpoint, employees, supervisors and Organization and Cattle: officials would clearly know what is required. Therefore, the seemingly endless litigation surrounding this area (which has the potential for unduly sapping the parties' resources in large part due to lack of agreement) could be avoided.
 However, as currently existing in so many relationships both within and outside of this industry, on this property the parties have not reached a consensus on the issue of drug testing. In all fairness to the parties, the inability to reach agreement on the drug testing issue is not solely one of simple intransigence, poor relationships or a product of the continual power struggle between management and labor. The issue itself transcends the collective bargaining process. Today, drug abuse is out of control and policies promulgated at the highest levels of our society have been unable to solve the problem. What may be accomplished at the bargaining table, in reality, will do little to stop the problem as a whole.
 The parties' goals are similar - no one advocates a work environment that could endanger the public or other employees and steps must be taken to insure that the Carver operates its business in the safest fashion possible.' At the same time, the chance that an employee may be falsely accused or wrongfully assessed as having taken drugs must be avoided at all costs. Just as lives axe ruined by the drug scourge facing this society, the lives of employees falsely accused of using drugs (and the lives of those employees'

 1 As the Organization states in its submission "This dispute is not about a drug-flee worrplace. The
 Organization strongly supports that goat ...."

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dependents) face similar destruction through improper Carrier action.
 The Car-.:er's dilemma is apparent The high degree of safety required in this industry, recent -a.-tdies resulting in loss of life and immense destruction of property and increasing federal regulation cause the Carrier to sec's a drug free work place. Thus, from the Carrier's perspac.^'.ve, a hard line must be advocate` On the other hand, the Carrier cannot be insensitive to the tragedy of falsely accusing employees and, for those employees who fall under the grip of the problem, the Carrier cannot ignore the fact that these employees (many of whom are long term) are in need of assistance. From the Carrier's viewpoint, however, to take other than a hard line on this question is as invitation for a future tragedy involving further loss of life and a corollary invitation for liability of massive proportions. The Carrier obviously envisions a future tragedy and a plaintiff's lawyer calmly telling a jury "Ladies and gentlemen, the defendant knew or reasonably should have known that the employees involved were using drugs and the defendant took no steps to reasonably check: the problem." From the Carrier's perspective, if it did not act affirmatively, in that scenario the only real question may be how many commas are to be placed on the liability check.
 The Organization articulately expresses the other side of the coin- The Organization seas the Carrier over-reacting in panic and in the process trampling over the employees in its desire to demonstrate that it is doing everything possible to accomplish a drug free work place. In the process, the Organization sees less than adequate testing procedures used, employees being falsely accused and traditional assertd rights of employees being violated. j,_ The Propriety Of Return-Tn_DLtv Drug Testin
 Therefore, because the parties have been unable to reach agreement, the issue squarely falls upon this Board. Putting the reasons for the parties' inability to reach a ' consensus aside and, most importantly, utilizing arbitral concepts developed is this

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                                      SBA 1020, Award 31

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industry and rccog-rl=ing the Iimitadons placed upon our authority which proscribe delving beyond the terms of .he Agreement, we must resolve the question of the propriety of return-to-dory drug :sting. Our analysis requires a weighing and balancing of Organization's asser-.a3 right prohibiting the Carrier from engaging in unilateral action against the Carrier's asserted right to make fitness and ability determinations.
 It is now clear that the issue involved in this case is a minor dispute under the Railway Labor Aces Therefore, the question of the propriety of the Carrier's promulgation of the policy as an ai?egedcontract violation is properly before us. Consolidated Rail Corporation v. Rci I;vay Labor Executives Association, et al., 105 L.Ed.2d 250, 267 (1989) ("...[W]e conclude that this controversy is properly deemed a minor dispute within the exclusive jurisdiczion of the Board."). As the Organization correctly argues, for the purposes of this case, Conrail is relatively narrow and is only jurisdictional in nature and does not address the merits of the dispute. See 105 L.Ed.2d at 272 ("...[IJn no way do we suggest that Conra,l a or is not entitled to prevail before the Board. on the merits of the dispute."). However, many of the concepts discussed by the Court in Conrail ate relevant to our consideration of the merits.
 It has long bra held that carriers have the authority to conduct physical examinations, set medical standards, determine the physical fitness of their employers and establish reasonable rules relating thereto. See Conrail, supra, 105 L.F.d.Zd at 267, n-9 (a caster's "power to conduct physical examinations is an implied contractual term."; Third Division Award 15367 ("We will here follow the long line of Third Division Awards that through the years have held that a Cagier has the tight to determine the physical fitness of its employees ....'~; Second Division Award 9368 ("It is well-established that the Carrier is well within their prerogatives to establish reasonable rules and standards relating to the physical qualifications of employer . ... On the other hand, these standards should not be applied arbitrarily, capriciously, or discriminately.").

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                                      SBA 1020, Award 21 P. Vlilcs Page 9


On balance, we view the Carrier's action of ...wiring employees to submit to return-toduty drug t-.sts as falling under the umbrella of the Carrier's authority to set medical standards a^d make fitness and ability dete^...inations. First, given the decision in Conrail that the 'rrd of drug testing involved in this case is not a major dispute under the RLA and that § 6 procedures need not be followed, the Organization's asserted tight against unilateral ac=on of implementing the policy is not absolute and therefore is not determinative of this dispute.
 Second, there is nothing in the Agreement that specifically regulates the Carrier's ability to test employees and hence, the Organization can point to no contractual language prohibiting the Carer from acting as it did w promulgating the return-to-duty drug testing policy. The Car: ms's promulgation of the return-to-duty drug testing policy is a response to the changes in our society of increased drug usage in the work place. The Agreement does not prohibit the Carrier from reacting to those changed circumstance. See Conrail, supra, lOS L.Ed?d at 265, n.7 ("...[Tjhe general framework of a collective-bargaining agreement leaves some play in the joints, permitting management some range of flexibility in responding to changed conditions '~.
 Third, as the Organization correctly asserts, the fact that an asserted change is not legally characterized as a major dispute does not mean that the Carrier can make changes at will- Unilateral changes is existing past practices must also be considered since those practices can rise to level of written contractual language. See Conrail, supra, 105 L.Ed.2d at 267 ("...[Cjollecdve-bargaining agreements may include implied as well as express toms [and] ... the pasties' `practice, usage and custom' is of significance in interpreting their agreement'; SBA 957, Award 17 ("...[W]eIl established work rules and practices, although not incorporated into the parties' written collective bargaining agreement, constitute implied-in-fact contractual terms ....'D. But jest as a practice of interpreting IZ1tle G has existed, so has the practice of the Carrier's utilization of return-toduty physical
 ' SBA 1020, Award ? 1
                                          P. VTiles

' Page 10

    examinations for determining employee fitness and ability. Indeed, these is a demonstrated evolution of testing procedures utiliztd by the Carries, As the District Court stated in RLE.9 v. National Railroad Passenger Corporation, supra, 691 F.Supp. at 1518 "The medical standards and tests administered in these physical examinations have changed from tithe to time with medical developments ...."Z

    On balance, giving the Organization the benefit of the doubt, the practice asserted by the Organization is, at best, of equal weight with the practice asserted by the Carrier. Stated differently, the question of whether or not the Carrier violated the Agreement by promulgating the return-to-duty drug testing policy is a contractual question and, as such, the Organization car-aes the burden of establishing the violation. Given the countervailing practices, the Organization has not car=ied its burden and the Organization's asserted practice cannot be found as controlling.

    The well-established case authority governing the Carrier's ability to make physical fitness determinations focuses the real question on the overall threshold issue before us. Specifically, the narrow question on this issue is whether or not the Carrier's action was arbitrary or capricious. See Second Division Award 936$, supra (... [t]hese [physical qualification] standards should not be applied arbitrarily, capriciously, or discriminately.').

    This Board may not agree with the wisdom of resorting to the type of testing procedure implemented and applied by the Carrier in this matter. Such a unilaterally promulgated testing procedure may well in the long run prove counter-productive, especially in terms of employee morale and that factor's relationship to job performance as it is weighed against the expressed nerds of the Cagier which it satisfied through unilateral action. However, whether we agree or disagree with the Carrier's choice is irrelevant The Carrier is responding to the growing tragedy of increased drug usage is the work place. In -


    See also the affidavit of Director of Field Operations J. T. Stafford given in the court proceedings which details the evolution of the Carrier's testing practices.

                                      SBA 1020, Award2 1

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                                      Page 11


return-to-duty situations, the Carrier is faced with employees who have been away from the work situs for Lengthy periods of time and, correspondingly, have not been in a position to be viewed by their supervisors in terms of ability to actually perform their job duties in a safe and productive :wanner. Given the Carrier's business of transporadon of millions of passengers each year and the strict safety requirements and responsibilities that attach to its function, we cannot say that the Carrier's efforts to modify its approach and check usage of drubs by employees who have not recently been subject to the day-to-day scrutiny of their supervisors by requiring those particular employees to demonstrate that they are drug free after lengthy non-work periods is arbitrary or capricious.
 Therefore, the decision to test in return-to-duty situations is a reasonable one. By testing in this fashion, the Carrier is taking preventative precautionary steps for a group of employees not subject to immediate recent scrutiny. Such a decision falls within the bounds of the Carrier's prerogatives. We have considered the specifics of the Carrier's policy with its one time 30 day requirement for submitting a negative sample and the option for EAP assistance along with the periodic reEesting provisions and the consequences of a positive test during that periodic retesting and find those conditions similarly reasonable. We need not address other aspects of the policy as those other procedures were not in issue in the cases before us -3

 Our conclusion in this matter is not one of first impression. See e.g., PLB 3530, Award 83 wherein the employee was recalled to duty and underwent a return-to-duty

 The underlying premise of the Larder's decision to extend drug testing to employees who have been out of service for lengthy periods of time is that the hYeIrZrood of drop usage is higher' during those idle times. That premise was recognized, in part, in SBA 957, Award 17, supra ("Suspicion of controlled substance use is probably stronger upon the time of an employee. returning to work, as during his absence the danger tray well be greater that he had a relapse in his rehabilitation.") Again, whether of not that is is fact the case is not the question. We carmot say that the underlying premise in this case is Irrational and does not provide a basis for the Caster's determination that employees returning to dory after lengthy periods of time should be tested.
 Obviously, we express no opinion on the propriety of random drop testing as opposed to the type of testing implemented in this case. We do note, however, that the underlying premise of the potential for increased usage during lengthy periods of non-worldttg time would not exist in a random testing situation where employees ate working and available for observation.

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                                      SBA 1020, Award 21

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physical examination which included a drug screen urinalysis which test demonstrated a positive result for cannabinoids through E:VIIT screen and Gas Chromatography/Mass Spectrometry ("GC.'VIS") confirmacen. Similar to the policy in this case, the employee was held out of scr c-zce and was advised to submit a negative sample within 45 days or face dismissal The e.^,:pioyee was subsequcndy dismissed upon failure to provide a negative sample or enter an a^ployee assistance program as directed. In denying the claim, the Board held:

          The C=crier has estabL;shed through substantial, credible evidence on

          the -ecord that Claimant violated the Carie.-'s lawful drug policy.

          i Zvfor

--over, Claimant also failed to follow the instructions of the Care: s medical director by not submitting a negative urine sample or entering the DARS program. The Carrier has a well-settled right to formulate policy and rules, especially those which deal with its obligation to provide for the safety of emploves and the public. The scourge of substance abuse is particularly evident in the transportation industries, and public safety demands that rules on drug and alcohol use be established and enforced. The Carrier established lawful and reasonable rules and instructed Claimant to abide by them. The evidence is that he did not and that the Carrier enforced its rules without being arbitrary, capricious or discriminatory. See also Awards 8 7 and 88 of that same Board which also involved the failure of employees to submit negative samples after return-to-duty drug tests showed positive for prohibited substances; PLB 3783, Award 63 involving this Cagier ("it was not improper for Carrier to require claimant to pass the drug screen before returning to wodL'); Award 72 ("In the light of its heavy responsibilities for safety, Carrier's policy in cases of this nature is not unreasonable or unduly harsh."); Award 73 ("We have had prior occasion to consider Carrier's 30 day notification policy to employees testing positive for drug use and find it in line with its heavy responsibilities for safety and efficiency in a demanding industry.'); and Award 74 ("Carrier's [return-to-duty drug testing] Policies and procedtttrs ..- are not realistically unreasonable, particularly in the light of its responsibilities for safe and efficient railroad service."). Finally, see PLB 4187, Award 6 ("[ljt must be concluded that the Carrier testing procedure is a proper and reasonable exercise of rights in an
                                          SBA 1020, Award 21

                                          P. Miles

                                          Page 13


    employee-employer --lationship in providing for the safe conduct of business ....").

    Z. The (]yani2ation's Ar=mPn s

    In support of is position in this matter, the Organization has proffered extensive and detailed arw4meas. We find that the Organization's well-formulated arguments do not change the result

    First, as noted earlier, it is now settled that the implementation of the return-to-duty drug testing policy s not a major dispute under the RI--k. Conrail, supra. Therefore, negotiations in accord with § 6 of the RLA are not required.'

    Second, First Division Award 23334 is also not determinative. In that case, the carrier sought to isYgose random testing for alcohol intoxication through use of an Intoxilyzer. The issue before us does not involve random testing. Moreover, the basis for the Board's ruling in Award 23334 was narrow. According to the Board "All we have decided in this disput-. is that the Intoxilyzer program unilaterally implemented by the Company in September, 1980 was contrary to the prior long-standing practice that existed on this property [for 30 years] for detecting intoxication ... [- a practice that] constituted a binding condition of employment which was just as much apart of the collective bargaining agreement between the parties as the written terms thereof ...." This case does not exhibit the lengthy past practice found in Award 23334 but, on the contrary, shows prior return-toduty drug tests for certain employees and generally shows the Carrier making fitness and ability determinations and conducting rettun-to-duty physicals .5

        Third, the Organization's analogy to the law developing under the National labor


    The Organization's reliance upon SBA 957, Award 17, supra, is not persuasive. That award did not address the issue before this Board ("... the Board does not here address the question of whether body fluids tests of employees at the time of return ro work physicals is appropriate where there is no past history of controlled substance abuse ...: ~.

    Although not de:m-trrninative of this matter, the area of misconduct focused upon by the Board im Award 23134 was alcohol intoxication with the parties' S0 year practice "that evidence of intoxication was based on visual observation; surmise; and other outward physical manifestations, such as a flushed face, slurred speech, unsteady gait, glassy eyes, etc." as opposed to drug usage which does not necessarily exhibit such outwardly ideadnabk manifestations.


t,
                                      SBA 1020, Award 21 P. VIiIes Page 14


Relations Act conce^ing the obligation of employers in the private sector to bargain eve: drug testing policies (see Johnson-Bareman Company, 295 NLRB No. 26,131 LRRM 1393 (I989) and the V7.RB General Counsel's Guidelines, Memorandum GC 87-5 (198 77 (Org. Exh. 11)) is not appropriate. The VLRA does not distinguish between major and minor disputes as does the RLA and the statutory schemes are decidedly different See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 686, n.'_'3:

          The : :andatory scope of bargaining uncle: the Railway Labor Act and t_`~e extent of the prohibition against injunctive retie: contained is

          I 'qor.

            -is-LaGuardia are nor coextensive with the National Labor

          Relations Act and the [~7 RB]'s jurisdiction over unfair labor

          practices. See Chicago & V. W. R. Co. v Transportation Union,

          402 US 570, 579, n. I I, (1971) ("parallels between the duty to

          bargain in good faith and the duty to exec every reasonable effort,

          like all varallels between the NLkA and the Railway Labor Act,

          should be drawn with the utmost care and with full awareness of the

          differences between the statutory schemes:') [Emphasis added].

Further, the Organization's analogies between the iYLRA and the RLA are not appropriate here whew the parties am in the arbitcal forum litigating managerial tights existing tinder the Agreement (particularly where the issue is one of dete^miniug the propriety of assessing fitness and ability and establishing medical qualifications under the terms of the Agreement), as opposed to determining statutory bargaining obligations that do not necessarily recognize managerial discretion as that discretion has developed under existing case law relevant in this forum. In short, the Organization is arguing statutory law in the arbitral forma. As the Supreme Court has held, in the arbitrai forum it is arbitral body's function to interpret the parties' Agreement and not another statute. See e.g., Alexander v. Gardner-Denver, Co., 415 U.S. 36, 56-5 7 (1974) concerning the potential conflict between an arbitrator's award and a statutory scheme (in that case, Title VIE of the 1964 Civil Rights Act):

        ArbitraI procedures, while will suited to the resolution of contractual disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VB. This conclusion rests first on the special role of the arbitrator, whose task is to effectuate the intent of the parties rather than the requirements of


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                                      SBA 1020, Award 21 P. vliles Page 15


          e::acr-d legislation. Where the collective-bargaining agr---ment conr'_'cts with Title VII. the arbitrator must follow the moment .... ['i ht specialized competence of arbitrators pertains primarily to the law of the shop, not he law of the land .... [T]he resolution of st`r*~=ory or constitutional issues is a primary responsibility of courts


Fourth, t~`e Organization's argument that return-to-duty drug tesdrtg is improp?f because no probable cause exists does not carry sufficient weight to rescind the policy. Again, the overri,^'-ir_g factor is the we!1-zstablishe3 right and obligation of the Caller to make fitness and =ci-ry determinations and the latitude that established case law gives to the Carrier formakirg --~oseassessments.6Indeed,theargumentthatsomeformofcause must exist for all w.cs of testing has been rejected. See Conrail, supra, 105 L.Ed.2d at 271-72:

          As Conrail pointed out and urged at oral argune,^.t, "par--4c·,rlatized suspicion" is not an accepted prerequisite for medical tes rine . ... A physician's decision to perform certain diagnostic tests is life?y to rum not on the legal concept of "cause" or "individualized suspicion," but rather on factors such as the expected incidence of the medical condition in the relevant population, the cost. accuracy, and inherent medical risk of the test, and the likely benefits of de-."=n. In designing diagnostic- testingprograms, some employers establish a set of basic tests that are to be administered to all errroloyees, .... regardless of whether there is cause to believe a paracalar employee will test positive. It is arguably within Conrail's range of discretion to alter its position on drug testing based on perceived changes in these variables. [Emphasis in original, citations omitted].

      Fifth, the Organization's reliance upon the District Court's decision in RLEA v.

Nat'onal Railroad Passenger Corporation, supra, (as well as other cases reaching the same conclusion) is not persuasive. The Court held that under the RLA "7"ne imposition of drug testing gives rise to a major dispute ...." 691 F.Supp. at 1524. In light of the Supreme Court`s subsequent decision to the contrary in Conrail, that conclusion is now in doubt-v

 Return-to-duty drug testing is not analogous, as the Organization argues, to situations where as accident occurs and "every employee. in the vicinity of [the] accident" is tested, which "would be easily .. abased and tantamount to a random testing program". PLB 3139, Award 37.
 The Cleric of the Court, advises us that District Court's opinion was appealed to the D.C. Circuit which, after Conrail and upon motion, remanded the case back to the District Court where it is now p=ding.
                                      SBA 1020, Award 21

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                                      P. Mks page 16


The Court did not consider, indeed, under its analysis and its authority it could not,
 consider, whether, in fact, the action was permissible under the Agreement as an exercise
 of the Carrier's authority to make Fitness and ability determinations. T'ne same analysis' ,
 holds for the other carriers' drug testing policies cited by the Organization which policies
 were found prior to Conrail to be major disputes. In short, the line of court cases relied
 upon by the Orgartizstion addresses whether or not the type of dispute involved in this case
 is major or minor under the RLA and the current view of the Supreme Court holds the issue
 to be minor. In any --vent, that is not the issue before us. The question of contract
 violation is the issue at hand

 Sixth, Third Division Award 21293 is also not on point Award 21293 did not involve drug testing or use of drugs. In that case the Board sustained a claim involving arr employee who was dismissed for conduct unbecoming after he was convicted and was incarcerated for assault against another individual resulting from as altercation off the carrier's property. The Board relied upon the concept that "a Carrier may not discipline an empIoye for what he does off duty" and found no evidence of damage to the carrier resulting from the caoloyee's outside activities. However, the Board did articulate the ezc_-odon that we believe is applicable to this case:

          An exception to this principle permits discipline when the off-duty conduct affects the employer-employe relationship. Cortical to such an exception, however, is the guiding principle that the outside activity, in order to be subject to discipline, must definitely relate to Carrier's operations. By this it is meant that the misconduct must have arisen out of plant activities or carry with it a serious threat of disrupting the orderly, efflcienz, or safe condztcr of the Carrier's business. [Emphasis added].

In this industry, drug usage carries with it precisely that serious threat
 The Organisation's further reliance upon arbitration awards arising in the private
 sector are not persuasive.s However, one award cited by the Organization, Maple Meadow
Those cases do not always show industries having a background of established case authority
 giving the employers the right as the Carrier has here m make fitness and ability determinations. Further,
                                      SBA 1020, Award 21 P. Miles Page 17


tYlining, 90 LA 8 7-7 (Phelan, 1988) while addressing a broader policy than the one involved in this matter, came :o the same conclusion as we do with respect to rer~um to-duty drug testing. Id. at 880:

 In a previous decision, I had occasion to deal with the issue of whet;.er a drug screen could properly be included as a part of a rerun to work physical, and I concluded that it could because it is simply one of a number of medical tests included in a physical exasination conducted for the purpose of determining an Employee's physical ability to perform regular work dudes in such a manner so as not to constitute a potential banned to himself or herself or to others. In that sense, it is no different than a chest x-ray, a stress test, a hearing or eye test, a back examination, or any other medical procedure which enables the physician to make an informed judqnent on the Employee's physical ability. While we do not ag:--a with all of the analogies made by the arbitrator, we do agree with the arbitrator's conclusion.
      Seventh, the Organization's argument that the policy is aimed at penalizing

off duty conduct is similarly unpersuasive. All forms of physical fitness testing, `
 including those previously followed by the Cosier (which the Organization had no
 objection to) detect physical problems that could conceivably be linked to off duty
 conduct.9 The focus of our review is upon the reasonableness of the Carrier's
 determination Given the safety implications involved we have found that policy to
 be reasonable. Therefore, the employee's choice to engage in use of prohibited
 substances while off duty cannot serve as a shelter.

      Eighth, with respect to impairment on the job, the Organization argues that mere


the cases ate factually different than the present situation, especially on the question of return-to-dnty testing. For example, The Board of Education of the District of Colrmt6ia, AAA Case No. 1639 0030 85Fi (Kaplan, 1985) involved a rule even narrower in scope than the predecessor to Rule G that prohibited drug usage "while on school premises" and no evidence suggested the employees used drugs while an school premises. Further, the testing procedure involved was highly suspect is that only as unconfirmed F.hffT screen was used. In Trailwayr. Inc., 88 LA 1073 (Goodman, 1987) there was "no evidence whatsoever to show a practice or eves an instance where [tire relied upon role] has been utilized for drug testing propose . [and] there was no written rule or policy for drug testing ...." Id. at 1079.
 The logical extent of the Organization's argument would prohibit the Carrier from testing an employee who was injured in an automobile accident while on vacation as to whether tire ityuries incurred prohibit the employee from performing his usual duties.
                                      SBA 1020, Award '_1

                                      P. Miles

                                      Page 18


presence of a prohibited substance in an employee's system does not equate with a showing that the employee is impaired. The Organu=con argues that evidence of smoking a marijuana cigareae 30 days in the past may appear in a drug screen but the employer tray be perfectly capable of performing all duties. Questions of passive inhalation or usage of a drag whose presence in the system is not detectable for as long as other less harmful drugs , (e.g., cocaine which is not detectable for as long as marijuana) come to the forefront. But again, we need not determine that presence of a prohibited substance in the system does or does not medically, in fact, affect an employee's ability to perform. In this particular safery-based industry the Carrier has made a policy derision that initially withholds employees from service based upon detected drug presence and then imposes discipline after failure to provide a negative sample. Under a de novo standard of review, that de·.eznination may well be questionable as it infringes upon conduct of an employee during non-worlting time. But under the arbitrary or capricious standard which governs us and with the great latitude given to the Cagier for ma)ang fitness and ability deteaninations, we cannot say such a result is not reasonably related to the safety-related goals recognized as legitimate by both parties.

      Ninth, with respect to the Organization's argument that the Carrier's change in

policy has improper disciplinary consequences, the Court's reasoning is Conrail is ,
 sufficient for this matter (105 L.Ed.2d at 272): -

          It is clear that Conrail is not claiming a right, under its medical policy, to discharge an employer because of a single positive drug test, a right many railroads assert under Rule G. See , Skinner, [103 L.Ed.2d 639, 109 S.Ct 1402]. Furthermore, an employee has the option of requesting a period of rehabilitative treatment. Thus, it is surely at least arguable that Conrail's use of drug testing in physical examinations has a medical rather than a disciplinary goal

              The fact that for drug problems, unlike other medical,

        conditions, Conrail's standards include a fixed time period in which

        the employee's condition must improve, does serve to distinguish

        Conrail's drug policy from its response to other medical problems.

        Conrail has argued that it needs, for medical purposes, to require

                                      SBA 1020, Award 21

                                      P. VLiIes

                                      Page 19


          employees who deny ;hat they are drug-dependent to ce:aonsuate that dicy are capable of producing a drug-free sample at will .... In our view, that argument has sufficient merit to satisfy Conrail's burden of demonstrating that its claim of contractual entitlement to set a u-ae limit for successful recovery from drug probie:as is not frivolous.

While Conrcl discussed the discipline question in the context of whether or not the argument was frivolous in terms of determining whether the dispute was major or minor, we believe that the above-quoted logic carries over into the merits of t'.-_e dispute in this case. The Carrier' s policy gives the employee a reasonable period of ;:.=:e to demonstrate a lack of drag dependence before discipline is imposed. It is not unreasonable for the Carrier to conclude under the policy that, after testing positive, failure of the employee to provide a negative sample at a nature date as directed is sufficient demonstration of a drug dependent individual who is unfit for duty and incapable of following the Carrier's instructions. By the same token, whey the Carrier makes the determination that an employee has tested positive for drugs, the initial withholding of the employee from service until a negative sample is given is not disciplinary entitling the employer to certain hearing rights under the Agreement's disciplinary procedures (here, Rule 19). The action of the Carrier in withholding the employee from service. is appropriate for a medical disqualification.
 Tile Org an;?ari on counters arguing that even assuming that the unilateral promulgation of the return-to-duty drug testing policy is found to be permissible as a reasonable exercise of the Carrier's authority, the imposition of discipline far failing to provide a negative relent within the prescribed periods as required. by the terms of that unilaterally promulgated policy is objectionable and constitutes a prohibited change is practice since employees were never before disciplined for being placed in a medically disqualified status.lo That fine-line distinguishing argument is not persuasive.
      We have found the return-to-duty drug testing policy to be a reasonable exercise of


10 gem the Organization asserts drat the affected employees should simply be held in a medically
 disqualified steno until they can demonstrate their lack of drug depended.
                                      SBA 1020, Award ? 1 P. Miles page 20


the Carrier's authority. We have further found that rhea is nothing to demonstrate that rue time constraints contained in that policy are an unreasonable exercise of the Carrier's authority. In shot-, the Cagier has promulgated a reasonable policy that carries with it the traditional sanction that failure to comply with a policy or rule results in discipline. To give weight to an argument that a practice -existed wherein the Carrier did not take certain action
 would effectively foreclose the Carrier from any first-time exercise of a legitimate -
 management prerogative. Under the Organization's argument, in each case that the Carrier
 sought to exercise authority not prohibited by the Agxament's explicit or implicit terms, the
 Organization could effectively block that otherwise valid action because a past practice
 existed of non-exercise of that authority. Under that rationale, the Carrier could never acs
 in a manner not previously exercised- Without more, we cannot give weight to the
 Or ganization's argument to change the result In the context of this particular case, the
 Carrier has decided that violations of its return-to-duty drug testing policy result in
 discipline rather than continued medical disqualification if the employee fails to present a
 negative sample within the prescribed periods. That managerial decision must also be
 tested under a reasonableness standard and we cannot say that such a decision is an
 unreasonable exercise of the Carrier's authority.11
 Tenth, the Organization argues that the tests utilized by the Cosier are unreliable and that the laboratories used by the Cosier for testing the samples are prone to give erroneous test results. Specifically, the Organization keys upon the unreliability of the E'-YLTT test and the high level of false positives as well as the asserted possibility that confirmatory GC/M5 tests nevertheless can yield false results. With respect to the laboratories, the Organization focuses upon instances where chain of custody problems

 i i Agate, we do trot read First Division Award 23334, srmsa, as broadly as the Organization. That
 award clearly addresses the change from detection of alcohol impairment by physical observation to ,.
 demon through random usage of the InrouTyzer ("[T]he Inroxilyzer program is administered randomly and
 indiscriminately. ._: "). Such a change in practice is not present in this case. Nor does that award stand for
 the proposition that the Carrier cannot impose discipline as part of the valid exercise of a managerial right
 to formulate a rule or policy.
                                        SBA 1020, Award 31

                                        P. Miles

                                        Page 21


    have been demonsu red and further focuses upon cited examples of poor performance by certain labs.

We are unwilling to make the general finding that the testing procedures are flawed in all cases. We view those issues as questions of fact to be explored on a case-by-case basis. In this regard. we are bound to use the well-acceptd standard that evidence supporting the Carrier's decisions wilt be reviewed under the substane2l evidence standard. See Third Division kward 26207 and awards cited therein ("We do not substitute our judgment for the Car_ier's nor do we decide what we might or might not have done on a de novo basis. Our function is to determine whether or not there is substantial evidence in the record to support the Carrier's decision."). While the substantial evidence standard is not the same as de novoexamination of the evidence that exists in other arbit<al forums, we are mindful that given the authority of the Carrier to conduct the kinds of drag tests that we are approving in this matter, we will carefully scrutinize the Carrier's actions in making its determinations whey timely brought into question by the Organization- The authority exercised by the Cagier and the consequences flowing from that exercise of authority through implementation of the drug testing program are immense. Avoidance of wrongfully accusing and caoneously acting against an employer is the corollary responsibility that the Carrier assumes. The employee's only goal recourse is to forums such as this Board and it is not our intention to permit the tragedy of sustaining an action against the wrongfully accused employee. See SBA 957, Award 17 Supra (Me Board will closely examine bow the test was administered, how the chain of custody was maintained, and how and what tests were performed by the laboratory to which the specimen was sent'. But again, so as to permit proper development of the record, is order for us to examine these questions and to allow the Carrier the ability to offer evidence n - concerning the testing procedures and chain of custody, the Organization must timely raise the issue at the investigation.
                                      SBA 1020, Award ? 1 P. iVLiIes Page 22


Eleventh, the Organization's argument that the drug testing policy is punitive analogizes the Carier informing an employee who injured his back that he must be cured within 30 days or face dismissal for failing to improve. The analogy is not appropriate. The injured zmplovet obviously may not have the ability to cure himself within the given d=.e period The eu ployee testing positive for drugs has that ability to provide the negative sample - Le., by simply refraining front the use of prohibited substances or, under the policy, by delaying :Le retest and seeking assistance through the EAP.
 Twelfth, the Organization's argument that no public policy underpinnings exist for the testing of the employees who are non-operating personnel and that the testing procedures violate privacy rights as overly intrusive are not questions for us to resolve. Our function is limits to the inteipretzdon of the Agreement and the existence or lack thereof of the Carrier's authority to act Questions of public policy, like questions of statutory interpretation and constitutional considerations, are for the courts and not for this Board. See Alexander v. Gardner-Denver, supra, 415 U.S. at 57 ("[T]he resolution of... constitutional issues is a primary responsibility of courts ...."). Again, the question is whether or not the Carrier's decision to test employees returning to duty was arbitrary or capricious. The Carrier asserts that it desires all employees, whether operating or nonoperating, to be in a position to act in the most efficient and safe maser possible at all times, including potential emergency situations and its polio is designed m meet that goal In our opinion, that reason is not irrational and absent justification.
 -Thirteenth, is light of our finding that the return-to-duty drug testing policy is not a. violation of the Agreement, the Organisation's argument that it is not insubordination to refuse an instruction which flows from an illegal policy is moot
 Fourteenth, the Organization's argument that by endorsing the Carrier's policy this Board is sanctioning conduct that could result in the Carrier testing employees returning v from one day's absence is not well taken. We are limiting our finding to the drug test given
                                      SBA 1020, Award 21

                                      P. Yliles

                                      Page 23


as part of the return-m-dory physical examination for employees who have be= away from the work situs for la-gthy periods of time "for any reason other than vacation, of 30 days or more". Our decision goes no further.

          3. Conclusion On The Carrier's Policy

In sum, in our limited function of interpreting the Agreement and under the doctrines further (;rraing our authority, we find the Carrier's requirement that employees rearning to duty must submit to a drug screen as part of the return-to-dory physical exa*r,;*,ation to be a rolicy not prohibited by the Ayee:rrent or a violation of established past practice. Questions concerning the accuracy of the particular tests used or test safeguards employees to insure the integrity of the samples are factual questions that must be resolved on a case-by-case basis and will be addressed when timely raised by the
 Organization. -

      B. The Merits Of Claimant's Case

With respect to the merits of this particular case, the record shows that Claimant suffered an injury to her back while working on March 22,1988 and was released by her doctor to return to work on May 10, 1988. On May 11, 1988 the Carrier's Industrial Nurse K. L. Miller administered an MITT screen consistent with the reZiun-to-duty drag testing policy. The test showed positive for the presence of camrabinoids. A report form American Medical Laboratories ("ArY11.'~ from a test on May 12, 1988 indicates a GC/NIS confirmation for the presence of cartnabinoids.
 By letter dated May 13, 1988 pursuant to the Carrier's policy, miller, on behalf of the Carrier's Medical Director, Dr. J. R Young, informed Claimant by certified mail as
 follows: .. _

          A urinalysis conducted as part of your recent physical examination was positive for Cannabinoids. Accordingly, Amtrak's v medical policy forbids your return to service at this time.


        In accordance with Company policy, you are instructed to rid your system of Cannabinoids or any other prohibited drugs.

                                      SBA 1020, Award 21 P. \-Liles Page 24


          You must also provide a negative urine sample ... within i0 days of the date of this letter, or, [ijf eligible, enter the Employee Assistanca Program. (EAP). You wilt be permitted only one retest within this 30 day period. If your retest is positive, you will not be permitted to enter the EAP. If you fail to comply with these instructions, you will- be subject to dismissal.


          If you feel that you have a physical or psycholoycal dependency nn Cannabinoids or other drugs, I urge you m seek help from one of our EAP counselors. If you enter the EAT, you will not have to provide a negative sample until the EAP counselor deter-nines that you are ready to return to wor!c. At that time, you will be scheduled for a drug test before you can return to work. A brochure describing the EAP and giving a list of the names and telephone numbers of our EAP counsellors is enclosed.

On Tune 13, 1988 Claimant appeared for a retest in accord with the policy. According to Nurse VLiller (Tr. 22), "I got the impression that Ms. Miles was sure that she would be negative and would be returned to work." \~Iiller conducted two FrbQT tests on C h_-nant on that date. The first test was conducted at 9:15 am. and the second was conducted at 9:55 ate. Once again, the EMIT screens showed a positive presence for cannabinoids. A report from AW, from a test on June 15, 1988 again confirmed the presence of cannabinoids through GC,?vIS testing. As a result, under the Canter's policy Claimant was dismissed from service on July 22, 1988.
      Claimant denies using drugs. According to Claimant (Tr. 44):


              jA_] ... I do not use drugs, I have five children at home ranging from two years old to seventeen year[sj old and I don't use drugs and I don't use alcohol because that's not showing much of a role model to my children and I don't approve of it

After learning of of her positive retest through the EMIT screen conducted. by Miller on June 13, 1988 Claimant contacted her physician and had an independent test conducted at Southern Maryland Hospital That test was conducted approximately four hours later and yielded a negative result
 At the investigation, the Organization attacked the validity of the results reported by ARM and particularly focused upon the chain of custody. Aside from the lab reports from P.lYM and a chain of custody form that ended with Nurse Miller giving Claimant's sample
                                      SBA 1020, Award =1

                                      F. Miles

                                      Page 25


to a courier for transportation to AML., no spec evidence was offered concerning the tests administered by lNtl,, the safeguards used or chain of custody followed at ANIL. With respect to what happened after the sample was seat to P.iMl.., Miller testified (Tr. 34, 31):

              [Q.] Do you know if ?.NM, on that end of it, when the courier brings it do you know what they do in terms of checking the specimens, do they check the temperature that they were carried, maintained that, that sort of thing?


              [A.] I have no idea, once they leave my hands, I have no idea of the procedure.


              [Q.j Do you have any idea who accepted the test at the AML Laboratory?

          [A_] I have no idea.

          (Q.] Do you have any idea who ran the test?

          [A.] I have no idea


              [Q.j Do you have any idea whether they questioned the courier as to the temperance that the specimen had been kept at during transport?

          [A.j I have no idea.


              EQ.] Whether that specimen or was the only one carried over at that time?

          [A.j I have no idea.

In upholding the Carder's right to conduct return-to-duty drug tests, we stressed the corollary responsibility that the Carrier assumes to avoid the possibility that an employee will be falsely accused of using drugs and that, when timely raised by the Organization, a case-by-case exaction must occur utilizing the substantial evidence standard. Here, at the investigation, the Organization attacked the validity of the tests and the chain of custody. Here, substantial evidence does not support the Carrier's determination that Claimant validly tested positive for camtabinoids on her June retest.
                                      SBA 1020, Award 21 P. -Noes Page 26


The record shows that the June retest administered by Nurse Miller showed positive for cannabinoids. However, that test was an EMIT immunoassay sc:rca.l2 Miller did not conduct the confu-matory GC/MS test but seat Claimant's specimen to AW, for that purpose. At this point in the science of drug testing, due to the potentially high chance for false positives in the EMIT screen, it is fairly well-accepted that an ENIIT screen alone will. not suffice to deu or-slate the presence of prohibited substances.l3 The high potential for false positives in that test is the reason employers such as the Carrier resort to GC/MS confirmation Is
 But althoug~ brought into question at the investigation, the record demonstrates practically nothing concerning the confirmatory GG`VIS test conducted by AMT- With respect to safeguards, procedures and chain of custody at ANIL, bLiller testified (Tr. 34) that "I have no idea, once they leave my hands, I have no idea of the procedure." Indeed.

 1 Miller testified (Tr. 21):
 [Q.j what's the name of test we're tallcng about?
 [A.j the Ceva [sic! emit.
 13 Evidence entee3 in National Treasury Employees Union v. Von Raab, 649 F.Supp. 380, 389
 (;;.D. La. I986), vacarid, 816 F2d 170 (5th Cir. 1987), vacarid in part and remanded, 103 L.Ed.2d 685
 (1989), illustrates the point Quoting a toxicologist
 The My= screen suffers from limitations is its reliability. This test will give a
 positive result for the tested ding when other prescription and over the counter
 drugs have been ingested, and may react to food and orbs substances, including
 enzymes produced by the body itself. 'Ibis is because of a phenomenon !mown
 as "toss-reactivity". The legitimate drugs that have triggered a positive result
 for marijuana, for example, include the anti-ittflarnawry drugs ibuprofen,
 fenoprofen, and naproxen, some of tire most widely used drugs in this country.
 They are sold under the brand names Advil, Motdn, Nuptin, Rnfen, Anaprox,
 Apanaproxen, Naprosyn, Navaanaprox and Nalfoa A number of drags that stn
 closely related in chemical structure to amphetamines will also tat positive,
 mainly diet and cold preparations containing ephedrine and phenyiprapanoiatnine.
 These include Nyquil, Comac and other brand names. In addition, the
 immmroassay tests cannot distinguish between codeine, a legal ding, and heroin.
 Both are classified opiates.
 14 See Von Raab, soars, 649 F.Supp. at 390, quoting the same expert;
 If conducted properly, the combination of gas chromatography with mass
 specnotnetry art provide a more reliable test for determining the presence of
 drags in a urine sample because it identifies the specific metabolites is urine
 samples.
 See also. Van Raab, supra, 816 F.Zd at 181 ("While the initial screening test, EMIT, tray have too high a
 rate of false positive results for the presence of dings, the union does not dispute the evidence that the
 fallow-up test, GGMS, is almost always accurate, assuming proper storage, handling and measurement
 oechniques.'~.
                                      SBA 1020, Award 21

                                      P. Nfiles

                                      Page 27


with respect to the chain of custody at ALA_ Miller further testified fir. 33-34):

 [A.] ... [A]s far as this company is concerned, no one touched
 this specimen except YIs. Nfiles, myself and the courier and
 then it left the company and then from that I have no record
 of... I have requested from authorities of Ai1AL to give us at
 least a copy of the chain of custody of the entire chain of
 custody which they have agreed to do but it has not arrived
 as yet.
 Therefore, oven though. timely raised at the investigation, there is simpiy no evidence in this
 record concerning what happened in the administration of the confurnation test by AiVIL.
 We are thus .`=cad with a record concerning the June retest whica shows an employee who denies usage of drugs; a positive EN= screen whose results and procedures were rue 'culously documented at the investigation, but a test chat by its very nature is prone to high incidents of false positives and, when properly used, is only the first step in the drug rating process; and although questioned, no evidence concerning the circumstances surrounding the GC/MS confirmation. Since the GCS test results were brought into question at the investigation and no evidence concerning the details of that? test's administration could be offered by the Carrier's witness, it was the Carrier's obligation to do more than only rely upon the written results from ATNff.. The Carrierwas on notice that it had to do more than rely upon a piece of paper that could not be cross e xamines To accept the validity of the GUMS test results is this case would be rantamoant to accepting the results of a written piece of paper on mere blind faith and would further foreclose the Organization from efforts to question the validity of the GUMS - results. Given the ramifications of blindly accepting those results, under the circumstances . of this case we are unwilling to do so when the results have been so seriously questioned- -
 Another factor is this particular case weighting towards a sustaining award is-the negative independent test taken by Claimant a few hours after she was advised by Miller that her 2v1T screen was again positive. While ordinarily the Carrier is not required to .J accept the results of a subsequent test conducted outside of its control (see PLB 3783,
                                      SBA 1020, Award ? 1

                                      P. bfiIes

                                      Page 28


sward 65, supra ("Carrier did not have to accept another test taken by claimant at a different laboratory through her own physician.")), given the serious failings in the evidence concerning the GC/MS confirmation relied upon by the Carrier in this case, the independent test conducted at Southern Maryland Hospital becomes significantly more probative. Therefor, under the circumstances of this particular case, we are unable to accept the final resu! is of the Carrier's June 1988 rarest as a demonstration that Claimant failed to comply wit.`r the Carrier's instructions under its return-to-duty drug testing policy to provide a negative urine sample.
 We therefore find substantial evidence does not support the Carrier's action in this case. Claimant shall be returned to se-vice without loss of seniority- or other rights and benefits and shall be compensated for time lost from June 13, 1988 (the date of the rarest). Claimant's reinstate-aent is conditioned upon a return-to-duty physical examination including a drug screen, which shall be taken within 30 days from the date of this award.'-` AWARD
 The Carrier did not violate the Agreement by implementing the return-to-duty drag testing policy. In light of the lack of evidence concerning the circumstances susounding the confirmation test conducted by ANIL and given the other factors set forth in the Opinion, substantial evidence does not support the Carrier's determination that Claimant had prohibited substances in her system when she retested under the Carrier's policy. Claimant shall be returned to service without loss of seniority and other rights or benefits and shall be compensated for time lost from June 13, 1988. Claimant's reinstatement is conditioned upon a return-to-duty physical examination including a drug screen, which

 15 In fight of our decision, the Organization's arguments concerning the mixing of samples due to
 lack of sufficient volume are moot
                                      SBA 1020, Award 21

P. vffies Page 29 shall be taken within 30 days from the date of this award-

                      Edwin enn

                      Neural Membei


    A

    L. Dd e- J. . ampbell

    Carrier Member Organizarion Member


Chicago, I1I171015 August 7, 1990