AWARDS 68 - CARRIER FAILS BURDEN OF PROOF - RULE G

Special Board of Adjustment No. 925, Case 22 (Kasher)

"The Carrier contends that as the drug analysis testing performed by Lincoln General Hospital showed positive on the marijuana screening, the Claimant was subject to discipline for violating Rule 556. However, both Exhibit No. 2 and No. 3, the first and second urine test reports, state: `This test may detect the cannabionid (sic) metabolites for several days after smoking a single marijuana cigarette. Detection of the metabolite does not indicate the person was intoxicated at the time of sample collection'. These exhibits do not provide this Board with any 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. In point of fact, as previously noted above, all the evidence points to the Claimant's being available for service and capable of performing his job safely.

"We are not persuaded by the Organization's arguments that there is reason to doubt the validity of the urine/drug analyses. The Claimant admitted use of illegal drugs prior to the tests being taken and thus this Board concludes that the Carrier had reliable proof that there were drugs in the Claimant's system. However, the Rule does not provide that an employee will be subject to discipline for having drugs in his system. Thus, although the Carrier attempted to change the import of the Rule when it drafted the Notice of Dismissal the change in language does not convert the Claimant's misconduct to an offense subject to discipline.

"This Board is well aware of the Carrier's understandable sensitivity where employees engaged in the operation of heavy equipment and motive power are accused of illegal drug use and abuse. However, in the instant case there is no showing that the Claimant's off-duty use of marijuana caused him to jeopardize his safety, the safety of his fellow employees or the safety of the public. Accordingly, we are constrained to sustain the claim.

"We would observe again that this Board is deeply disturbed that an employee engaged in the operation of heavy equipment is not sufficiently mature and law abiding so as to avoid the use of prohibited substances. The Claimant, who has established a fine record of employment of almost ten years with the Carrier, would be well-advised to avoid at all time the use of marijuana an other drugs recognized by the society as being illegal; he is particularly advised that his on-duty conduct in the future should be free of such activity.

"Award: The claim is sustained in accordance with the above findings. The Carrier is directed to restore the Claimant to service within five (5) days after receipt of this Award. The Claimant shall have his record cleansed of the charge, and he shall be made whole for all lost pay and benefits. The Claimant's seniority shall be restored unimpaired."

Special Board of Adjustment No. 925, Case 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 employes 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 extend 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. 2329, Award No. 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 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."

Public Law Board No. 4107, Award No. 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 the 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."

Fourth Division Award No. 4795 (Marx)

"This is the only information on which the Carrier determined the Claimant's guilt. There was no smell of alcohol reported. There was no direct questioning as to whether the Claimant had been drinking. There was no order to the Claimant to remain available for alcohol testing. He was simply told that he would not be permitted to work; not surprisingly, he left.

"The Board finds there was insufficient proof that the Claimant was in `violation of Rule G.' Nor can it be reasonably concluded that the Claimant's `actions in leaving the property' were any `further indication' that he was under the influence of alcohol."

First Division Award No. 24100 (Zusman)

"This record is deficient in the needed proof. There are strong grounds for suspicion but none adequate to establish guilt. Carrier's alcohol policy and approach are certainly in line with the serious need to remove all drug use from the work place. There is every right of the Carrier to rely upon customary breath and behavior evidence to substantiate any alcohol or drug use. Dismissal for Rule G or GTOR General Notice upon factual presentation of alcohol on the breath did not herein occur. The Carrier's discipline must be based upon a clearly established fact with the full weight of substantial probative evidence. Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion' (Consol. Ed. v. Labor Bd. 305 U.S. 197, 229). The evidence in this record is inadequate to conclude that the Claimant had been drinking. Claimant is to be returned to service with seniority and all other rights unimpaired and he is to be compensated for all time lost, less any outside earnings he may have had from February 7, 1990 until he is returned to service."

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."

Second Division Award No. 13071 (Newman)

"The threshold and determinative question in this case is the existence of substantial evidence to support a conclusion that Claimant had alcohol in his system on February 16, 1993, as asserted by the Carrier. The testimony of Ahrendt, Harris and Cord that they smelled alcohol on Claimant's breath must be weighed against the eight employees testifying otherwise, the admitted lack of any other indicia indicating alcohol use, the lack of medical verification of the presence of alcohol, the fact that the Carrier was aware of Claimant's asthma and allergies and his use of specific medication, and Claimant's reasonable explanation as to why his breath may have smelled similar to alcohol. Considering the totality of the evidence presented, we cannot find the existence of the required showing. First Division Award 23923.

"With respect to the Carrier's argument that any back pay liability has been cut off by Claimant's failure to accept its offer of conditional reinstatement on October 28, 1993, the cases relied upon by the Carrier reveal that the doctrine that settlement offers are rejected at Claimant's peril normally is applied where guilt of the charges has been established and review of the appropriateness of the penalty is being assessed. See Third Division Awards 28076, 28645; First Division Award 22123.

"In this case, the Board has found that the Carrier has failed to sustain its burden of proving the charge against Claimant. Further, the offer of reinstatement in this case, while conditioned upon the normal requirements for reinstatement of a Rule G violator, would have placed Claimant in the same position as other Rule G violators, and could have had an adverse impact on his future record. Under such circumstances, his rejection of such offer should not toll any otherwise appropriate liability for lost wages. However, the record indicates that the Claimant may have made himself unavailable by returning to school at some time during the period subsequent to his dismissal. Therefore, the Carrier is directed to restore Claimant to service with full seniority rights and benefits upon his completion of a return to work physical, and to pay him for lost wages at his straight time rate of pay for all time that he was available and able to perform his work. Interest is denied."