ONE PERSON MAKE DECISION TO TEST (53)

First Division Award No. 23911 (Twomey)

"As set forth in the FRA regulations 219.301 (C)(2)(ii), at least one supervisory employee responsible for the decision to require urine testing must have received at least three hours of training on the signs of drug intoxication consistent with a program of instruction on file with the FRA under Part 217. Such program shall at a minimum provide information concerning the acute behavioral and physiological effects of the major drug groups on the controlled substance list. Mr. Lowery was identified in the Carrier's Submission as having completed the Carrier's eight hour drug intoxication identification course. However, the transcript of the investigation does not bear out such an assertion for the benefit of this Board. Mr. Lowery testified on his qualifications only as follows:

"`Q. Mr. Lowery, are you familiar with procedures used by the Union Pacific Railroad for drug and alcohol testing.

A. Yes I am.

"`Q. How have you become familiar with these procedures?

A. I have attended seminars that was put on by the Law Departments Special Services and Labor Relations....

"`Q. You say you have gone to training Sessions with Labor Relations. Have you   gone to any for medical reasons, such as urine test procedures?

A. This was covered in the seminars that I attended prior to the Federal rules going   into effect.'

"The record before this Board does not show, as required by the FRA regulation set forth previously, that Mr. Lowery had the required three hours of training on the signs of drug intoxication consistent with a program of instruction on file with the FRA. The burden of proof is on the Carrier in this regard, and conformity of Mr. Lowery's training to the FRA regulation should have been developed in the record.

"As just stated, the Carrier has the burden of proof to establish that Mr. Lowery had a reasonable suspicion that Petitioner was currently under the influence of or impaired by a controlled substance based on specific personal observations. Mr. Lowery testified that Petitioner was `very nervous and was more concerned about where his grip was then protecting the move he made into the wrong track on the A&S.' Mr. Lowery questioned petitioner after 6:45 A.M. The incident happened at 6:00 A.M. The questioning took place after the crew had completed yarding the train, when no further responsibility to protect the train existed. Such a statement as quoted above without further development does not aid this Board in understanding a basis for reasonable suspicion that an employee is currently under the influence of or impaired by a controlled substance.

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"The FRA regulation applicable to this case states that an `employee may be required to submit to urine testing for reasonable suspicion only if the determination is made by at least two supervisory employees.' As set forth above the record does not support a conclusion that Mr. Calloway had had a reasonable suspicion that Petitioner was currently under the influence or impaired by a controlled substance at the time the decision to test was made. Trainmaster Soholt attempted no such determination. Thus, even if Mr. Lowery's testing could somehow be construed to state a reasonable suspicion that Petitioner was currently under the influence or impaired by a controlled substance at the time it was decided that Petitioner should be tested (and, remember that Mr. Calloway testified that he and Mr. Lowery both agreed that Petitioner had to be tested more or less for what had happened, the misalignment of the switch), then the determination that a reasonable suspicion of current drug impairment was not made by at least two supervisory employees as required by the above set forth FRA regulation in order to require an employee to submit to urine testing for reasonable suspicion. We shall sustain this claim to the extent set forth at the end of our Findings."