AWARDS 82 - EMPLOYEE REINSTATED UNDER CARRIER DRUG POLICY - THEN TESTED POSITIVE FOR DRUGS WITHIN PROBATION PERIOD -- DENIED

Special Board of Adjustment 910, Award No. 442 (Marx)

"In accepting reinstatement under the Drug Testing Policy, the Claimant was fully aware that his standing was at risk during the three-year period. As stated in this Board's Award No. 370 (Peterson):

"It being evident that the Claimant failed in his obligation to remain free of the use of prohibited drugs in keeping with his conditional reinstatement to service under the Carrier's substance abuse policies and procedures, and the Carrier having a responsibility to provide a safe working environment free of employees who are dependent upon drugs which may impair sensory, mental or physical functions, the Board must conclude that the Carrier has just cause to discharge the Claimant from all its service."

Second Division Award No. 12101 (Zusman)

"The Carrier has fully met its burden of proof. The Claimant violated the Rule G Waiver. The drug screen was positive for cocaine, and the testimony about local anesthetics for tooth repair would indicate a positive test for opiates, not cocaine. There were two separate tests confirming a positive finding of cocaine. The Claimant signed the Rule "G" Waiver which stated `I will be dismissed from service unless I ... pass a test by urine..., each calendar quarter...." Claimant's positive drug test means he violated the conditions to which he agreed. Having violated the Agreement, dismissal is a self-executing consequence. In this record, the burden of proof has been met and dismissal is appropriate."

Third Division Award No. 29010 (Zamperini)

"The Board concurs with the Carrier in this case. Absent a showing that there was insufficient proof to support the fact an employee violated the conditions associated with his reinstatement, an employee is not entitled to an Investigation. There is sufficient valid evidence in this case to show that the Claimant violated a condition of reinstatement which required abstinence from alcohol and other drugs.

"Another condition of the Claimant's reinstatement was the submission to unannounced urinalysis tests. The Carrier requested such a test when the Claimant was on a Medical Leave of Absence. Such a leave does not sever the employment relationship. The Carrier was within its rights to request such a test under the Conditional Reinstatement Agreement. Once it was determined the Claimant tested positive for drugs, the Carrier was within its rights to return the Claimant to dismissed status."

Second Division Award No. 12521 (McMurray)

"During conferences with respect to that discharge the Carrier agreed, on a leniency basis, to return Claimant to service if Claimant and his Organization would agree to certain requirements as set forth in a `Return to Work Agreement.' An agreement was reached, and all parties approved the stipulations by signing the document. Consequently, after passing the Carrier's required examination, Claimant was returned to service on June 30, 1989.

"That agreement provided in pertinent part:

"`5. Mr. Cruz must give the Carrier the undisputed right to randomly test him for drug use for a period of two (2) years following the date he is reinstated to service. . .

"`7. Mr. Cruz must not violate the Carrier's Rule G during the remainder of his employment with the Carrier.

"`In connection with the aforementioned conditions of reinstatement, it is further agreed that should Mr. Cruz fail to fully comply with any part of such conditions during the period(s) specified, he waives his right to a formal investigation, as required under the Rules of the current agreement, with the understanding that he will be removed from service and returned to a dismissed status....'

"Under the provisions of the foregoing agreement, Claimant was tested for drug abuse on October 11, 1990. He failed the test and was informed by letter on October 18, 1990, that in accordance with the provisions of the Leniency Return to Work Agreement he was being removed from service and returned to a dismissal status. Accompanying the letter was a copy of the laboratory report from a qualified test facility along with a copy of the Chain of Custody Document used to ascertain proper handling of the specimen. Rule G was violated and the Carrier's action was in accordance with the leniency agreement.

"By a long list of Awards, this Board has held that violation of a properly executed Leniency Return to Work Agreement is proper cause for dismissal. The reason for such action was simply and succinctly described in Special Board of Adjustment No. 884, Award 146.

"`A Last Chance program can only work if, in fact, that is the last chance. Claimant was given her opportunity, unfortunately she was not wise enough to take advantage of it.'

Second Division Award No. 12744 (Malin)

"On February 16, 1991, Claimant agreed to a Letter of Understanding providing for his return to service on a twelve month probationary basis. During the probationary period, Claimant was subject to random drug and alcohol testing and to removal from service in the event of a positive test. On August 23, 1991, Claimant tested positive for Cocaine.

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"Carrier proved that Claimant tested positive for Cocaine in a properly conducted drug screen, despite Claimant's having agreed in a Letter of Understanding to remain drug free during his probationary period. Claimant's failure to comply with the Letter of Understanding and Rule G justified his dismissal."

Second Division Award No. 12778 (Malin)

"The evidence is clear that Claimant tested positive for cocaine on November 26, 1991, in violation of one of the conditions of the Rule G waiver. Under the terms of the waiver, Claimant was subject to dismissal. Claimant's subsequent efforts to rehabilitate himself are commendable, but the Organization cites no authority supporting its position that these efforts enable this Board to upset the dismissal. Numerous Awards establish that failure to comply with Rule G waiver conditions by subsequently testing positive for drugs warrants dismissal. See, e.g., Public Law Board No. 4863, Award 17; Public Law Board No. 4568, Case 5. Generally, pleas for leniency must be addressed to the Carrier; this Board has no authority to set aside an otherwise valid dismissal based on such a plea."

Second Division Award No. 12832 (Hicks)

"Claimant was allowed to return to service under certain, agreed to, conditions. He failed to abide with the agreement that allowed his return. The Board can find no reason to overturn or modify the discipline of dismissal imposed by the Carrier."

First Division Award No. 24262 (Meyers)

"On September 8, 1989, the EAP coordinator recommended conditional reinstatement of the Claimant after he passed a urinalysis test with the stipulation that he would be given two one-year probationary periods and he had to maintain total abstinence from alcohol and drugs.

"The Claimant did not comply with the conditions set forth in the reinstatement agreement during his first probationary period. Therefore, he was place on his second probationary with the condition that if he failed to comply this second time, he could be dismissed.

"On January 11, 1990, the EAP coordinator contacted the Carrier informing it that the Claimant had called her while he was intoxicated, again failing to comply with the terms of his probation.

"The Carrier held a formal Investigation and as a result, the Claimant was dismissed from service on February 27, 1990.

"This Board has reviewed the evidence and testimony in this case and we find that there is sufficient evidence in the record to support the finding that the Claimant did not comply with the requirements of the conditional reinstatement. The Claimant admitted during the Investigation that he was intoxicated when he spoke with the Carrier representative on November 7, 1989, and January 10, 1990. Those very facts make it clear that the Claimant failed to live up to the requirements of the conditional reinstatement.

"Once this Board has determined that there is sufficient evidence in the record to support the guilty findings, we next turn our attention to the type of discipline imposed. This Board will not set aside a Carrier's imposition of discipline unless we find its action to have been unreasonable, arbitrary, or capricious.

"In this case, the Claimant was given more than sufficient opportunity to reform his behavior. He failed to live up to the requirements of the conditional reinstatement. Consequently, the Carrier was justified in terminating his employment. Therefore, the claim will have to be denied."

Third Division Award No. 30903 (Hicks)

"Claimant tested positive for cocaine metabolites during a return-to-work physical examination on March 22, 1990. He did, at that time, have a choice. He could furnish a negative sample within a specified time period or enter a rehabilitation program.

"He chose the former and furnished a negative sample. He was allowed to return to work, but as a condition of his return, he agreed in writing to be randomly tested and to keep his 'system free of such substances.'

"On March 1, 1993, Claimant underwent another return-to-work physical, which included a test for drugs. Once again, he tested positive for cocaine metabolites. A Notice of Investigation was timely issued and following the Investigation, Claimant was dismissed from service."

Second Division Award No. 13026 (Hicks)

"Claimant was advised that the results of his return to work physical revealed that he had tested positive for a prohibitive drug. Pursuant to Carrier's policy, he was advised of certain procedures he must follow should he desire to be permitted to return to Carrier's service. One of the conditions was to produce a negative sample on or before a date specified.

"This Claimant did do, and on August 27, 1992, he was advised that he was being reinstated subject to random drug screens over the next three years.

"On February 14, 1994, Claimant was advised by Carrier's Medical Department that the random test sample was positive for cannabinoids, a prohibitive drug.

"He was cited for an Investigation for his:

"'. . . failure to comply with the Conrail drug testing policy . . . in that you failed to refrain from the use of prohibitive drugs as evidenced by the urine sample provided on 2-7-94, testing positive.'

"Following the Investigation, Claimant was timely notified that he was being dismissed in all categories from Carrier's service.

"The Organization has raised the defense that the various prescription and/or over-the-counter drugs Claimant was taking caused the positive test. The Carrier successfully countered that contention by stating in its letter of August 4, 1994:

"'You contend that the results of the Appellant's drug screening were improper due to the possible presence of other medications. We find such arguments at best, self-serving. The results obtained from a urine drug test is a combination of an initial screen followed by a second, highly specialized, confirmatory test. The combination of an EMIT screen and a GC/MS confirmation is accepted by state and federal courts as the proper procedure for documenting the presence of drugs in urine. Urine specimens submitted for Drug Screening are tested only for the presence or non-presence of particular drugs, marijuana being one of those drugs.'

"Furthermore, during the trial the Carrier introduced a statement attesting to, among other things 'the chain of custody, the security and sample integrity, screening procedures, confirmation procedures, the quality assurance and control and summary.' Contained in that statement is the following declaration:

"'The GC/MS can differentiate drugs that are almost identical in chemical structure so that the possibility of a false positive urine drug test result is virtually eliminated by the state-of-the-art analytical instrument.'

"The aforementioned excerpt from the certification statement was never challenged. It attests to the sophistication of the drug screening equipment and its ability to 'differentiate drugs that are almost identical.'

"Claimant has never established how the prescription drugs he was taking would register a false reading for cannabinoids.

"A review of the material and evidence produced clearly substantiates Claimant's culpability for the charges assessed. He failed to abide by the return to work conditions established in August 1992. He did not remain drug free. His dismissal will not be disturbed by this Board."

Third Division Award No. 31787 (Chamberlain)

"The record clearly shows that the Claimant signed a conditional reinstatement agreement in settling a prior Rule G case in which he was involved. He was well aware of the consequences of another test which, if confirmed positive, would lead to his immediate dismissal."