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







seniority rights unimpaired, compensate him for all time lost as a
 result of his wrongful dismissal, and make him whole for any other
 material injury he may incur in connection with such dismissal
 (Carrier file ASWC-D-1970, ASWC file 390-D7-153-D).
 OPINION OF BOARD
 As a result of charges dated September 14, 1987, investigation eventually conducted November 20, 1987 and by letter dated November 25, 1987, Claimant, a food specialist in the Carrier's service since June 1,1976, was dismissed for failing to timely submit to a second drug test as directed under the Carrier's return Oo-duty drug testing policy.
Claimant contracted Hepatitis A. On July 27, 1987 Claimant was released by his doctor to
 return to wor3c However, Claimant failed a return-to-duty drug screen taken on August 3,
 1987.1 -.;;:,..- ... .-
 According to General Supervisor A. G. Tam, after Claimant tested positive
 Claimant was orally notified of the results and was sent a follow up, certif ed letter dated

 1 The specific results of the tat was not supplied during the investigation.

August 3, 1987 (Tr. 9, 12):




Claimant did not appear to take the second drug test within the 30 day period specified by Tam or at any tithe thereafter.
 Claimant denies that he spoke to Tam immediately after the August 3,1987 drug test Instead, Claimant asserts that within a few days after taking the drug test he spoke to Crew Base Supervisor R. Settell about returning to work and Settell informed him that a later was being mailed to him and that Claimant should wait until he received the letter. According to Claimant ('Tr. 19), Settell "didn't say what it was for."
 Claimant testified that he never recdved Tam! s c...-~tified le-.= off August 5,1987. The letter was eventually returned unclaimed.
 Claimant also testified that on the same day he spoke to Settell he also spoke to a clerk at Caew Box and, because of the letter referred to by Settell, Claimant indicated that he wanted to give the clerk his correct address. According to Claimant, the clerk declined to take his address stating that Claimant had to fill out the appropriate form in person. According to Claimant (Tr. 20):



Further, according to Claimant, it was not until later in August 1987 that he spoke to Tam. Claimant testified that it was not until that time that Tam advised Claimant that he failed the drug test and that he sent Claimant a letter.
 In Award 21 of this Board we upheld the right of the Carrier to conduct return-toduty drug tests. The Organization argues that after failing the return-to-duty drug test, Claimant did not have knowledge of the conditions placed upon him under the Caster's drug testing policy. The Carrier's assertion is to the contrary.
 The arguments focus upon whether substantial evidence supports the hearing officer's conclusion that Claimant was told by Tam prior to August 5,1987 that he had to submit to a retest within 30 days after failing the return-to-duty drug mat Absent compelling reasons established by the record, it is not the function of this Board to make de rwvo credibility determinations. We find no reason to do so in this case with respect to the specific instructions given by Tam to Claimant that he had to retest within the 30 day period, particularly where the hearing officer, who, by being at the hearing, was in a better position to assess the demeanor and credibility of witnesses?
 But giving the Carrier the benefit of any doubt, what is conspicuously missing in this case is that upon testing positive Claimant was advised of his options under the

 2 Indeed, the 6ae~ ot'Pfca made audibility tesolutmos adverse to t:laiatattt on the specific question
 of having to retest within a 30 day period. We defer w those resolutions. Head Officer Baker found:
 2. The charge against you was substantiated primarily, but not
 exclusively, through the testimony of General Supervisor A. G. Tam. Such
 evidence established that you was ituauctad to submit m a second drug screen
 and that you did tent do so.
 3. Your own testimony established din you were aware of the instructions
 issued by Mr. Tam, and that you did not comply with them.
 4. I did not fend your assertion that catrespondatx to you was improperly
 addressed credible.-
                                      R. Jefferson

                                      Page 4


Carrier's policy. Under the Carrier's policy, having failed the initial return-to-duty drug test, Claimant:

          ... must, within 30 days, either be retested by an Amtrak nurse or a medical facility designated by Amtrak or, if eligible, enter the Employee Assistance Program.


          If an employee who has had a positive test does not enter the EAP and elects to be retested and the retest result is positive, the employer shall be subject to dismissal and shall not be entitled to enter the EAR [Emphasis added.

Specifically, while substantial evidence supports the Carrier's conclusion that Tam told Claimant that he had to retest within a 30 day period, the record is devoid of any evidence that Claimant was similarly advised by Tam or any other Carrier official that he also had the option under the Carrier's policy to enter the EAR Typically, the option to enter the EAP is spelled out in the Carrier's letter W the employee after the initial positive tat is indicated. Indeed, in Tam's letter of August 5,1987 Tam suggested that Claimant contact the EAP counselor and further wrote that "1f you fail to pas your second test, you will not be able to enter the EAP Program and will be subject to disciplinary action."s
      But the record is clear that, for whatever reasons, Claimant never received Tam's

August S, 1987 letter. That deficiency could have been overcome through oral notification
 to Claimant. However, close review of the record, particularly Tam's testimony, shows
 that although Tam told Claimant of the need to retest within 30 days, that record does not
 show that Tatm-dlscnssed the EAP option with Claimant. Gives that the Carrier has made
 the EAP optiae as integral part of its return-to-duty drug testing policy, it follows that
 notification to the employee of that option must be demonstrated, especially where the
 employee does not receive the formal notification of the results of the return-to-duty drug
 test. _

 3 The record shows that Tan war aware of the F.AP optic. in explaining the Carrier's policy a the
 hewing, Tam testified (Ty. 20) that "the employee cart also join the -A3. pmgram."
                                      SBA loco, Award as R. Jefferson Page 3


Claimant shall therefore be permitted to return to service without loss of seniority. However, in that substantial evidence shows that Claimant was made aware in earlyAugust 1987 that he would be receiving a letter from Tam detailing the circumstances surrounding his failure to pass the return-to-duty drug test and further given that Claimant took no concrete affirmative steps to obtain a copy of that letter (i.e., such as contacting the Post Office for forwarding purposes concerning the letter after Claimant learned that the Cagier did not have his correct address or requesting Tam or another Carrier official to forward a copy of that letter to his new address), reinstatement shall be without compensation for time lost. As a further condition of reinstatement, within 30 days of the date of this award, Claimant shall be required to pass a return-to-duty physical including a drug test. However, since thin record does not demonstrate that Claimant was informed of his option to enter the F.AP prior to his retest under the Carrier's drug testing policy, rather than submitting to a drug teat within 30 days of the date of this award, Claimant shall have the option to enter the EAP within 30 days of the date of this award. Should he choose to do so, the arms of the Carrier's drug testing policy for employees choosing that course shall thereafter appiy.4 AWARD
Claim sustained in part Claimant shall be permitted to return to service without leas of seniority. Reinstatement shall be without compensation for time lost and shall further be conditioned upon successful passage of a return-to-duty physical including a drug teat to be taken by Claimant within 30 days of the date of this award. Additionally, rather than submitting to a drug test within 30 days of the dart: of this award, Claimant shall

 4 -Whether the pivots! date far computing the 30 day period for retesting under the Caaier'a policy is
 the dace the test results were known a the date of the Curia's letter is not a determinative question in this
 matte and is one that need not be decided in this cue. At no time did Claimant in this case ever appear for
 a retest
 Further, given that the thrust of the invdtigatim concerned the circumstances surrounding the instruction to submit to a retest and the validity of the dmg test results were not specifically raised at the investigation, the Organization cannot now attack the validity of those tests. Cf. Award 21, supra.
                                      SBA 1020, Award 24

                                      R. Jefferson

                                      Page 6


also have the option to enter the EAP within 30 days of the date of this award. Should Claimant choose to enter the EAP, the terms of the Carrier's drug testing policy for employees choosing that course shall thereafter apply.

                    E

                        04

                      dwin H. Benn

                    Neutral Member


    -~.~'~:it-.~-

12 ZJLJOA
 ~. D. Miller J. . am ll
 Carver Member Organization ember

 Chicago, Illinois
      ,

              . 1990


~_ .
                                        AWARD NO. 24 CASE NO. 24


          SPECIAL BOARD OF ADJUSTMENT NO. 1020


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

                  SUPPLEMENTAL AWARD.


      In this Board's initial award, the following remedy was formulated:


          Claim sustained in part. Claimant shall be permitted to return to service without loss of seniority. Reinstatement shall be without compensation for time lost and shall further be conditioned upon successful passage of a return-to-duty physical including a drug test to be taken by Claimant within 30 days of the date of this award. Additionally, rather than submitting to a drug test within 30 days of the date of this award, Claimant shall also have the option to enter the EAP within 30 days of the date of this award. Should Claimant choose to enter the EAP, the terms of the Carrier's drug testing policy for employees choosing that course shall thereafter apply.


      By letter dated October 4, 1990 the Carrier, on behalf of the parties, advised us that


Claimant opted to take the physical examination including a drug screen rather than enter

 the EAP and successfully passed. The Carrier further advised us that Claimant:

          ... has returned to active service; however, the parties are in disagreement as to the claimant's status under Amtrak's Drug and Alcohol Policy. It is Amtrak's position that since claimant was subject to quarterly testing prior to the incident which resulted in his dismissal, he should now be subject to quarterly testing for a new two year period. This is consistent with [this Board's] decision in Award No. 36 involving claimant W. J. Wright.


          It is the Organization's position that since claimant Jefferson tested clean on his return-to-duty drug screen and because of the difference in wording between Award No. 24 and 36 he is no longer subject to the two year quarterly testing.


      As fully set forth in our award, Claimant was tested for drugs in accord with the


Carrier's return-to-duty drug testing policy which policy was found valid in our Award 21.

 Claimant failed that initial test and did not take a second drug test within the 30 day time

 frame called for in the policy. As a result, Claimant was dismissed from service. This
                                  SBA 1020, Award 24

                                  R. Jefferson (Supplemental)

                                  Page 2


Board nevertheless permitted Claimant to submit to a re-test or enter the EAP because the evidence did not demonstrate that Claimant knew or was made aware of his options under the Carrier's return-to-duty drug testing policy.
 Because Claimant initially failed the return-to-duty drug test, he became subject to the provisions of the Carrier's return-to-duty drug testing policy at the time he first provided a positive sample. The policy specifically states that:

          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 EAR

Our award merely gave Claimant the ability to re-test under the Carrier's policy. Therefore, since Claimant provided a negative urine sample after the award issued, he nevertheless remains subject to the policy's quarterly testing requirement. Consistent with the Carrier's position in this matter and in accord with the policy, the quarterly testing requirement shall run for a period of two years after his return to service.l

                    ,..--,

                    Edwin H. Berm

                    Neutral Member


      L. er ampCarrierMember Organizationtuber


Chicago, Illinois
 November 15, 1990

 1 It is therefore unnecessary to rely upon the remedy formulated in Award 36.