NO PROBABLE CAUSE (52)

Public Law Board No. 3139, Award 86 (LaRocco)

"Considering first the Rule G charge, the Board finds that the Carrier did not meet its burden of proving that Claimant violated Rules 565 and 566. As discussed above, the Carrier may not perfunctorily assume guilt simply because an employee refuses to submit to a urinalysis. Such a presumption effectively forces a charged employee to prove his innocence and the Carrier escapes from shouldering its burden of proving the Rule G charge. From the record presented to us, there is not one scintilla of evidence that Claimant used drugs while either on duty or subject to duty. Indeed, the relevant evidence leads to the opposite conclusion. The Assistant General Foreman related that Claimant's behavior was normal and she did not manifest any of the outward symptoms of either alcohol or drug usage. The urinalysis may have very well confirmed the presence or absence of drugs in the Claimant's body, but the test was never administered. Thus, Claimant is exonerated of the Rule G charge."

Public Law Board No. 4148, Award 10 (Lazar)

"The case of the Carrier rests wholly on the testimony of its two witnesses, Messrs. McCann and Wendt. Mr. McCann makes a single observation of smelling alcohol on Grievant's breath, but denies such smelling later. Mr. Wendt reports that he did not smell alcohol on Grievant's breath, but smelled some unidentified `dead weeds' on Grievant. Not noticed by Mr. McCann, Mr. Wendt observes a redness in Claimant's eyes. Mr. Wendt also states that Claimant had lack of eye contact, tenseness, and a posture of leaning. Mr. McCann observed that Claimant's speech and walking were apparently normal.

"In the opinion of the Board, the termination of an employee is a serious matter. The probative evidence in this case, at best, barely can support a conclusion of probable cause for probable cause testing. This case, however, arose prior to the putting in place of the Carrier's probable cause testing, and the Carrier's policy on this is not here involved. The stated charge for terminating Claimant is violation of Rule G, and the probative evidence does not warrant the Carrier's decision."

First Division Award No. 23884 (Twomey)

"This Board agrees with the determination in Award No. 86 of PLB 3139, that before the Carrier may impose discipline on an employee who defies the Carrier's demand for a urine sample, the Carrier must show probable cause for issuing the order. We find that the rationale set forth in Award 86 is also controlling in this case where the employee failed to allow test results to be released. We caution, that our determination is strictly limited to the facts of this case. And, Award No. 86 cautioned as follows:

"`... Employees declining to supply a urine sample are guilty of insubordination provided the Carrier's order was premised on probable cause.'"

Third Division Award No. 27802 (Kravit)

"In the present case the Carrier has the burden of showing that it is reasonable to infer that every traffic accident potentially involves drug use or the influence of drugs, regardless of the circumstances. If there is reasonable or probable cause to so infer, then a blanket order to provide a urine sample in every accident situation is reasonably related to the Carrier's need to operate safely and efficiently.

"The nature of Claimant's accident was such that there is no reasonable basis to believe that he was in any way at fault or for the remotest suspicion that he was not drug-free. Under the circumstances, requiring a urine test was equivalent to random testing and is therefore objectionable under the concept of just cause. The Carrier cannot be relieved of its burden to establish just cause simply because a traffic accident has occurred. The Carrier's ability to operate is in no way impaired by its inability to obtain a urine sample from an employee whose conduct has given no cause to believe he is in any way responsible for an accident or under the influence of drugs.

"Inasmuch as there was no probable cause to justify testing the Claimant, the Claimant cannot be found guilty of insubordination in refusing to take the test. Claimant shall be reinstated with seniority unimpaired and compensated for actual wage loss in accordance with the Agreement.

"A W A R D

"Claim sustained in accordance with the Findings."