CARRIER SHOULD CALL WITNESS FROM TESTING LAB IN DRUG CASES (23A)

Special Board of Adjustment No. 910 Award No 316 (Weston)

"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 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."

Public Law Board No. 4571, Award No. 3 (Peterson)

"At the company hearing, Claimant said that when he asked to have a blood test that `the lady told me at the Dispensary, they do not give blood tests there.' For reasons not explained in the transcript, Claimant's testimony in this regard went unrefuted, as did further testimony to the extent that both this lady, who Claimant identified by name, and her helper appeared confused or uncertain as to how the testing procedures were to be conducted. Certainly, in view of Claimant having stated that he was at the Dispensary for approximately three hours it would seem that if there was any question about Claimant's request to have a blood test or what tests were required under FRA procedures, there was ample time for the Dispensary personnel to have made appropriate inquiry about such matters before releasing Claimant. Moreover, the Dispensary personnel could have been called, but were not, to offer testimony at the company hearing if there was reason to doubt the veracity of Claimant's several statements."

Special Board of Adjustment No. 910, Awd No 372. (Peterson)

"There is no question that under some circumstances expert witnesses or those persons who had prepared a specific report are not necessary to a determination of facts, and there may be occasions when a witness cannot be produced. However, that is not the situation in the instant case. Here, there was an effective challenge to the authenticity of certain components of the testing procedure and the test results. The Carrier had opportunity to obtain and produce witnesses with first-hand knowledge of such matters. Instead of securing such witnesses, the Carrier elected to present its case against the Claimant on what must be considered as hearsay proferrings in the absence of any sound reason a to why a witness or someone knowledgeable of the basis for which the Claimant was charged could not be produced to testify and respond to the various questions raised by the Claimant's representative.

"Basically, it appears that the Carrier sought to have the hearing conducted as a mere formality. It says that had any additional witnesses been present, they simply would have introduced the same result of the Claimant's drug screens that were presented by the Trainmaster. This Carrier view of its burden of responsibility is contrary to the principal upheld in numerous past awards that even where evidence against an employee appears overwhelming a hearing officer need take care to ensure that an investigation is conducted in strict fairness and in such a manner so as have those facts favorable as well as unfavorable to the charges against an employee be brought out at the investigation. This burden is not satisfied where, as here, the record suggests that the Carrier was so intent on establishing a prima facie case on what it considered to be incontrovertible evidence of the positive results of the Claimant's drug test that it found no reason to produce credible corroboration when it was met with a challenge as to the scientific accuracy or reliability of the particular test results and questions as to whether all documents in connection with such test were handled in accordance with appropriate procedures.

"As indicated above, this Board is in general agreement with the principal expressed in many past awards, or, as cited to this Board, Case No. 88 of PLB No. 2720 (IBF&O v. Conrail) (Referee John J. Mikrut, Jr.) and Award No. 316 of this SBA No. 910 (Referee Harold M. Weston), as concerns it not being fatal error in certain circumstances for an official to testify regarding identification of formal documents and procedural matter related to drug testing. However, we think the record as developed in this case at the company hearing leaves no doubt that more was required of a witness than the introduction of documents. The Board believes, as indicated above, and as brought out in Award No. 316 of this Board, that some more appropriate witness should have been made available and that although the calling of a doctor may not have been necessary, a registered nurse 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.

"Accordingly, the Board will hold that the Claimant be returned to service with seniority and other benefits unimpaired, with pay for time lost. The Claimant will continue to be subject to random drug testing as set forth in the Carrier's letter of January 11, 1988, or to the termination of the three-year period which ends January 10, 1991."