CHAIN OF CUSTODY (51)

Special Board of Adjustment No. 18, Decision 5743 (Vernon)

"DECISION: As part of their presentation to the Board, the Carrier made an extensive presentation concerning their drug testing program and procedures. Presently designed into the program's procedures are--to the Board's satisfaction--adequate safeguards as to collection, chain of custody, tests, retests and test tolerances.

"However, adequate safeguards, in view of these unique facts, were not present in this case. While there was probable cause for testing, the record discloses in this case the collection/chain of custody was extremely lax. The Claimant simply set his uncapped sample on a receptionist's counter. It was not labeled or even accompanied by paperwork identifying the same as his. After placing the sample there the Claimant left the area. It is significant as well that a Carrier officer did not observe the identification of the sample.

"This may not have been fatal standing alone or in a singular case. However, this case is unique in that the other employe involved--who admitted at the investigation that he used marijuana within a week of the incident--had his sample handled in the same haphazard manner. An unmarked/uncapped sample with no accompanying paperwork was placed on the same counter. While the employes placed them there separately, the circumstances suggest too strongly that the samples could have been mixed up. Moreover, there is no evidence in the investigation that a confirmation test was performed."

Public Law Board No. 4354, Award 1 (Gentry)

"In the Board's opinion, serious questions were raised by the Organizationt (sic) to the testing procedures used and the validity of the chain of custody employed. When asked at the investigation hearing why he had an independent urinalysis taken the day following the one furnished at the request of the Carrier, the Claimant indicated that it was because of his concern over the procedures at the medical facility used by the Company to take the urine samples. The Claimant stated that the staff of the firm taking the urine sample did not seal his sample in front of him, nor did he see them codify the forms that were to accompany the sample. He testified that after the sample was taken, it was passed along to the lab technician without having a tape on it or his signature or initials. The representative of the Claimant also introduced at the investigation hearing statements by other railroad employees tested on the same day that they did not see the technician seal their samples or encode the samples or the accompanying forms. In addition, they were not requested to sign the Railroad Urinalysis Report form as is required to meet appropriate testing standards. A careful review of the entire transcript indicates in the testimony of the Claimant and the Carrier's Medical Director that in a number of ways the testing and procedures employed did not meet the standards outlines in the regulations of the Federal Railroad Administration.

"As indicated above, because of the Claimant's concern over the procedures followed by the organization that took the urine sample, on the following day he went to a private hospital to have a urinalysis taken. This test did not detect any product from the cannabinoid family or any other drug. The Board has serious concerns as to why the Carrier officials at the investigation hearing did not attach any significance to the fact that this second sample tested negative.

"On the same day that the urine sample was taken, the Claimant requested that a blood sample be taken and analyzed. His request was complied with but the Carrier failed to request that the blood be tested for the same drugs that the urine was tested for. As indicated in an article from the American Bar Association Journal that was introduced into the record of the investigation hearing, `urine retains a trace of drugs for a period of days, sometimes even weeks, long after the drug ceased to affect mental capacity. But drugs remain in the blood for only hours, so blood tests can reveal the recent ingestion of drugs.' Thus, in this case if the blood had been tested for marijuana usage, it would have also indicated whether marijuana had been used recently.

"Upon a review of the entire record this Board concludes that serious questions arise with respect to the manner in which the urinalysis was conducted and examined and the extent to which the Claimant was afforded the due process to which he is entitled. Obviously, both the Carrier and the Organization should have serious concerns over the use of drugs by employees and every effort should be undertaken to discourage their use. Under these circumstances, dismissal from service is an appropriate penalty. However, at the same time, every effort must be exerted so that employees are dismissed from service only when there is substantial evidence to support the conclusion that a drug use violation took place. This is particularly true with respect to the use of a testing procedure to determine whether an employee has taken illegal drugs. As the Organization pointed out in its submission to the Board, numerous commentators and critics have raised a host of questions with respect to how reliable independent medical laboratories are in protecting the chain of custody and in detecting the presence of particular drugs. It seems to us at a minimum that procedures should be worked out between the Carrier and the medical laboratories to meet as precisely as possible the standards promulgated by the Federal Railroad Administration.

"This Board feels that in the light of the objections raised by the Organization, and the Board's concurrence in the validity of most of these objections, the Carrier failed to meet the required burden of proof that the Employee had used marijuana on or about the date in question, whether such usage was on duty or off duty. Under these circumstances we feel the claim should be sustained."

First Division Award No. 24682 (Eischen)

"The well traveled Specimen ID# 0604500664 was next sent at the MRO's direction to yet another laboratory for retesting, Medical Science Labs in Wauwatosa, Wisconsin. On March 11, 1994 Medical Science Labs again performed two (2) GC/MS analyses and reported the presence of TCH metabolites at 19.4 ng./ml. in a specimen to which Claimant's Social Security number was attached. However, close examination of the paperwork indicates that the Specimen ID # for the sample which tested positive was not the aliquot of Claimant's alleged sample (#0604500664) but rather a sample bearing Specimen ID# 0604510057. Nonetheless, as soon as the MRO advised that a positive retest had been made, Carrier rescheduled the Investigation. Additionally, the General Chairman received the following:

"'This is in reference to your February 23, 1994 letter concerning the results of Mr. Davidson's re-test. In researching the content of your letter, I was able to determine that the results of that test not inconclusive, but as described to me, were "unsuitable for testing". I have been advised that this is neither a positive or negative result and as such I see no basis for your request to return Mr. Davidson to service as stated in your letter.'

"The Investigation was scheduled for April 15, 1994, however, it was again delayed due to Dr. Stuhler's health. After two additional postponements, the Investigation finally commenced on April 19, 1994. Subsequent sessions were held on May 17, June 8, June 15, June 28, July 12, July 26, August 23, with a final conclusion on September 13, 1994. Thereafter, Claimant was dismissed from service by Discipline Notice 16 dated September 23, 1994, based on the 'findings from the investigation.' The Organization's appeal was initially denied, and Claimant subsequently declined an offer of 'leniency reinstatement' which was conditioned upon withdrawal of this claim.

"From the very onset of collection through the bungled retesting, there are many reasons in this convoluted record why Carrier's conclusion that Claimant tested positive for TCH metabolites was fatally flawed. It is necessary to look no further than the mishandling of the sample collections on December 15 to find transgressions of DOT standards of sufficient seriousness and magnitude to render everything that followed in this tortuous record void ab initio. If the threshold flaws were not enough, the demonstrated egregious violations of procedures and process by the Carrier's subcontracted 'Medical Review Officer', would warrant reversal of the central findings upon which Carrier premised Claimant's guilt. An example will suffice: The discrepancy between Claimant's Specimen ID Number and the sample which Medical Science Laboratories tested positive was demonstrated on the record at the third day of Investigation on June 8, 1994, and the MRO testified that he could not explain that discrepancy.

"At the fourth day of the Investigation on June 15, 1994, the MRO asserted that the mistake in specimen numbers was just a 'clerical error'; but when challenged could produce no substantiation for that assertion. During June 1994, while the Investigative hearings were in recess, the MRO induced Dr. Frederic of Medical Science Laboratories to create an 'affidavit' to 'correct' the misidentification of the Specimen ID Numbers and to retroactively edit a letter backdated to March 15, 1994 by deleting a full paragraph which raised chain of custody doubts regarding the aliquot allegedly tested positive by Medical Science Labs. In addition, at the MRO's insistence, Dr. Frederic rewrote a sentence in that letter to completely alter its original meaning by deleting the underlined and bracketed words: 'I am [not] sure [if] this is sufficiently documented to meet your approval.' After these documents were altered to his satisfaction, the MRO then entered the re-manufactured documents into the Investigation record at the sixth and final session on July 12, 1994.

"Thus, these putative 'objective men of science' demonstrated that they had sufficient self-interest at stake in these proceedings that even evidence tampering was not an acceptable means of achieving the desired result of a 'positive' retest to try and vindicate the flawed initial sample collection. It is self-evident that Carrier's conclusion that the Medical Science Labs retest was valid was premised upon those spurious documents. For any and all of the above reasons, this claim is sustained. The period of time when Claimant was unavailable for work due to surgery and recuperation shall be factored into the computation of his damages under this Award."