NOT UNDER INFLUENCE WHILE ON DUTY (50)

Public Law Board No. 2329, Award 4 (Kasher) 

"It is undisputed that on the day in question the Claimant was viewed closely by several responsible Carrier representatives, including his Trainmaster, the Assistant Trainmaster and the Carrier's Medical Director. Their testimony, as well as the entirety of the record, establishes clearly that the Claimant demonstrated none of the ordinary and customary indicia of intoxication on the day in question. In fact, after a face to face meeting with the Claimant, the purpose of which was to elicit the Claimant's agreement to taking the blood test, the Carrier's Medical Director returned the Claimant to completion of his normal assignment. The only observation regarding the Claimant's condition and physical appearance, which might be considered out of the ordinary, was the conclusion that he was walking 'rigidly'. However, upon questioning by the Orgainization (sic) the witness who observed the Claimant's `rigid' walking style, testified that this was the manner in which the Claimant walked naturally.

"In the absence of the any conclusive evidence that the Claimant was in possession of or using intoxicants while on duty or subject to duty on May 31, 1977, this Board finds that the claim should be sustained.

"AWARD: Claim sustained."

Special Board of Adjustment No. 925, Award 30 (Kasher)

"There is no reason to dispute the fact that there was a positive finding of THC in the Claimant's system. It may be that the Claimant directly ingested marijuana or, as the Claimant contended, he may have been exposed to marijuana when others were smoking it in his presence.

"There is also no reason to doubt the substantial and corroborative evidence, offered by both the Claimant's and the Carrier's witnesses, to the effect that the Claimant showed no signs of impairment on the date of the accident or on the subsequent dates that he worked prior to his dismissal from service.

"The Notice of Dismissal charges the Claimant with 'being under the influence of marijuana (THC) while working as Laborer of Regional Construction Gang #1 at Rozet, Wyoming on November 6, 1985.' The Carrier found that the Claimant was `under the influence' based upon the `results of your urinalysis test'.

"The instant case, in terms of arbitral principles, does not differ from Case/Award No. 22 decided by this Board on November 5, 1985. In that case we concluded, in sustaining the claim and in restoring the claimant there to service, that there was no conclusive proof that the claimant was using controlled drugs on the job site or that he had reported to duty under the influence of said drugs. If anything, there is less proof in the instant case that Claimant Byram was in possession of drugs on Carrier property or reported to service under the influence of drugs. Accordingly, we are constrained to sustain the claim.

"In Case/Award No. 22 this Board expressed its sensitivity to the Carrier's need to provide a safe work place for its employees and to maintain safe operations so that the public will be ensured that its safety is not being jeopardized by the indiscriminate use of legally prohibited substances by Carrier employees who are charged with the operation and maintenance of heavy and dangerous equipment. Although the Board is restoring Claimant Byram to service with seniority unimpaired and with pay for time lost, we will require that his service record carry a notation that a positive THC (marijuana) finding was made as a result of his November 6, 1985 urinalysis.

"This Board is presently not in possession of sufficient medical data to determine to what extent an individual who tests positive for THC would then be presumed to be 'under the influence of marijuana'. This Board intends to explore that question because we are extraordinarily concerned about returning employees to service who may, because of their use of drugs even if that use takes place some substantial time prior to their reporting to duty, be impaired in terms of their ability to respond to the needs of their positions.

"In the instant circumstances we are sustaining the claim in accordance with the above findings.

"Award The claim is sustained."

Public Law Board No. 4107, Award 6 (Vaughn)

"The Carrier is engaged in a comprehensive effort to end employee drug use. It has a number of tools to help it do so, including use of drug tests for probable cause. This Board believes that, in instituting its probable cause testing policy, the Carrier attempted to act in good faith to respond to an urgent and difficult problem.

"Railroad operating employees have an obligation to conduct themselves so as to ensure that they are fully fit for duty. Claimant's probable use of drugs at sometime in the past may have compromised that obligation, and the foregoing discussion should not be read to approve or permit his conduct.

"The Board holds, however, that when the Carrier chose to discharge claimant for being `under the influence' of THC, based on positive drug tests, it bore the same burden as in other discipline cases of proving impairment by substantial and convincing evidence. The Board concludes that the Carrier has failed to meet that burden. Accordingly, the claim must be, and it hereby is, sustained.

"AWARD: The claim is sustained. The Carrier is directed to remove censure from claimant's record to reinstate him to duty with seniority unimpaired, and to make him whole for wages and benefits lost during the time he was out of service. The Carrier shall make the Award effective within 30 days from the date hereof.

"The Board will retain jurisdiction of the claim for a period of 60 days from the date hereof in order to allow the parties to bring before the Board differences which might arise in how the Award should be implemented. Any such differences shall be presented in writing to the Board, and the Board would thereupon establish a procedure for presentation resolution of the dispute."