Special Board of Adjustment No. 910
PARTIES TO
DISPUTE: United Transportation Union
and
Consolidated Rail Corporation
STATEMENT OF
CLAIM:
Claim by Trainman M. J. Beik for "pay for all time lost,
reinstatement to service with seniority and vacation rights
unimpaired and payment of productive allowance and short crew
money for each day lost."
FINDINGS:
Petitioner challenges the validity of-the dismissal of
an employee who, according to Carrier, tested positive for
cannabinoids and cocaine on January 7, 1988. By that late
date, and indeed well before that time, that employee (the
claimant herein) was certainly aware, or should have been
aware, of Carrier's concern about the drug problem and of the
policy that it would follow in dealing with the problem.
We have had frequent occasion, unfortunately, to
consider Carrier's drug policy and have upheld it as a
reasonable exercise of managerial discretion to meet a
horrendous condition that cannot be tolerated anywhere and
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surely not in an industry involving train movements and-heavy
equipment. The policy has not been administered in an uneven
or disparate manner.
claimant was employed by Conrail on June 11, 1971 and
has been in a furlough status most of the five years
immediately preceding his discharge. On May 4, 1987, he was
required to take a return to service physical examination.
According to Carrier, a drug screen analysis conducted as
part of that examination was positive for cannabinoids. on
that account, claimant was disqualified from service pending
further examination. He was also advised by Carrier's
Medical Director's letter of May 11, 1987 as follows:
"In accordance with Company policy, you are
instructed to rid your system of Cannabinoids and
other prohibited drugs and to provide a negative
urine sample within 45 days of the date of this
letter (June 25, 1987) at a medical facility to which
you have been referred by the Company. If you fail
to comply with these instructions, you may be subject
to dismissal.
I strongly recommend that you contact the Conrail
Employee Counselor, who is: [Name and Address].
I also encourage you to seriously consider and follow
the recommendations that the counselor may make on
your behalf. Should you enter a counselor-approved
educational or treatment program, the time period
within which you must provide a negative urine sample
can be extended to 45 days after you complete or
leave the initial phase of the program, or 125 days
from the date of this letter, whichever comes first.11
Claimant resorted to self-help and provided a negative
drug screen on June 24, 1987. He was congratulated by
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Carrier letter,of June 25, but warned that he would be
required to undergo periodic unannounced testing for a three
year period and would be subject to dismissal if he should
again test positive.
On December 18, 1987, claimant was again recalled from
furlough and required to take a return urinalysis. He took
the physical on January 7, 1988. Carrier maintains that his
urine sample on that date tested positive for cannabinoids
and cocaine.
on that basis, claimant was charged with failure to
comply with the Conrail Drug Testing Policy and to refrain
from the use of prohibited drugs. A hearing was held on the
charges on February 24, 1988 in claimant's absence. The
hearing was scheduled to begin at 10 a.m. and when claimant
failed to appear or call by 11:45 a.m., the hearing officer
proceeded with the hearing over the organizat'ion's objection
and request for a further postponement. Claimant had been
duly notified of the hearing's time, place and nature and no
further delay was warranted. The objection was properly
denied.
Carrier's notice of discipline dated March 8, 1988,
informed claimant that he had been dismissed for failure to
comply with Carrier's Drug Policy in that he did not refrain
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from the use of prohibited drugs "as evidenced by the urine
sample provided on January 7, 1988, testing positive."
It is Petitioner's position that the decision to
discharge claimant must be reversed because of procedural and
substantive defects. It's first point--that the notice of
charges served on claimant betray prejudgment--clearly lacks
merit. The notice fairly advised claimant of the accusations
against him that he would have to meet in the hearing
process.
Petitioner's second contention is that the transcript of
the hearing contained garbled questions and testimony and was
erroneous in a number of respects. We agree with Petitioner
that all due effort should be made to have an accurate
transcript prepared. There is no evidence that carrier was
at fault in the matter or that claimant was prejudiced by any
omission or incoherent statement. The objection will be
overruled.
Contrary to Petitioner's third point, Carrier was not in
error in having Assistant Superintendent Newcomer testify
regarding identification of formal documents and procedural
matters. On the other hand, there is merit in Petitioner's
contention that some more appropriate witness should have
been made available to testify regarding the tests given
claimant as well as the processing and analysis of the
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specimen. Knowing the difficulty involved in bringing in a
physician in this type of proceeding, the calling of a doctor
may not have been necessary. However, a registered nurse who
handled the test or a responsible technician or other
competent witness familiar with the case should have been
called to present evidence and to be subject to cross
examination.
On balance, it would seem important to follow that
procedure in so important a situation as the dismissal of an
employee with substantial service, particularly when he was
called in for the tests in question while on furlough.
Manifestly, Mr. Newcomer had no first-hand knowledge of the
tests and analyses performed here. While there is some
measure of expense and time involved in bringing in
witnesses, a realistic weighing of the respective interests
involved in a discharge case of this nature persuades the
Board that competent witnesses should have been called in
this case.
The fact that claimant was subjected to testing while on
furlough was not unreasonable on its face. The evidence does
not clearly show that he was not subject to duty at the times
in question or might have been called for assignment soon
thereafter. Moreover, this is not a Rule G case and Carrier
should have some latitude in giving tests to make reasonably
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certain that trainmen being considered for duty are not using
cocaine. This is not to say that in an appropriate case, we
might not hold that it would be improper to test an employee
on furlough.
Carrier's findings that claimant had tested positive for
cocaine is supported by reports and analysis by such
reputable authorities as Oakwood Industrial Clinic (Lincoln
Park, Michigan) and Roche Laboratories (Raritan, NJ) as well
as drug memoranda of carrier's Medical Director, Dr.
Hawryluk. In view of that credible and substantial evidence,
we will deny the claim for back pay.
Carrier will, however, be required to reinstate claimant
to its service with seniority unimpaired in the light of the
shortcomings we have mentioned with respect to presenting
competent witnesses for examination and, perhaps more
important, cross-examination purposes. All other relief
sought by the present claim will be denied.
AWARD: Claimant reinstated to Carrier's service with
seniority rights unimpaired but without back pay. To be
effective within 30 days.
Adopted at Philade phia, PA,
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, 1989
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~° Ha'told Weston, Ch '.i.l. < <',..L
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Carrier Member Employee Me er