AWARDS 84 - REFUSE PHYSICAL EXAMINATION (URINALYSIS) (DRUG TEST)

Second Division Award No. 12087 (Zusman)

"The events giving rise to the second Investigation followed at 6:05 A.M. when the Shop Superintendent was informed of the three incidents and felt that the influence of drugs or alcohol was the probable cause of the sleeping. The Shop Superintendent requested a urinalysis. Claimant was clearly informed that his refusal was considered a Rule G violation (Rule 565). Claimant admitted in the Investigation that he refused. The Board finds that the Claimant was admittedly guilty as charged.

"The Board is finally confronted with the fact that by date of May 2, 1988 the Carrier made an offer of reinstatement on a leniency basis which was signed by the General Chairman. A similar letter dated June 28, 1988 was signed by the Claimant under protest. It required the Claimant to pass a physical examination prior to return to service. Claimant refused the examination which included a urinalysis. The Claimant has argued Ex Parte and before this Board that he was innocent of the charges and subject to harassment and discrimination. The Board finds substantial proof to support the Carrier's position in the case at bar. It finds nothing in the record that was discriminatory. The Claim is denied."

First Division Award No. 24143 (Fredenberger)

"It is a proposition too well established to require citation to authority that insubordination is so serious an offense as to justify the ultimate penalty of discharge. While as with any general rule there are exceptions, we do not believe Claimant's insubordinate conduct qualifies for any exception. By refusing to submit a urine sample for toxicological testing, Claimant frustrated what has become well recognized as the Carrier's wholly legitimate right under circumstances like those of the instant case to ascertain whether an employee is under the influence of or has used drugs or alcohol while on duty. To sanction such behavior under the circumstances of this case would render that right ineffectual. Under these circumstances we must conclude that, despite Claimant's fourteen years of service with the Carrier and relatively good disciplinary record, dismissal was not improper."

Third Division Award No. 29448 (Simon)

"We do not find Award 1 of PLB No. 5022 to be palpably mistaken or erroneous. The exceptions to `obey now, grieve later' are extremely limited. Claimant was not required to violate the law by submitting to the examination, and there is no basis to conclude Carrier's directive was in violation of any law, notwithstanding Claimant's assertion to the contrary. His reliance upon constitutional rights is simply inapplicable in an employment setting. Further, we do not find merit in his assertion that the administration of the drug test would be humiliating. There is basis in the record to presume this test would be performed on a urine specimen, which he would most likely have been required to provide in connection with a physical which did not include a drug screen.

"Applying Award 1 of PLB No. 5022 to the facts of this case, we cannot come to any different conclusion. In both instances where Claimant refused to submit to examination, his refusal constituted insubordination, which is a dismissable offense. Carrier already gave Claimant a second chance by suspending him the first time. There is nothing in the record to cause us to modify Carrier's decisions."

Third Division Award No. 29504 (DiLauro)

"With respect to he charge of failing to properly perform his duties as a Train Dispatcher, the Board finds the Carrier sustained its burden to prove the Claimant's conduct caused the accident and constituted gross malperformance. The Board also finds the Carrier sustained its burden to prove the Claimant failed to submit to reasonable cause testing in violation of Rule G.

"With respect to the disciplinary action, the Board will not set aside discipline imposed by a Carrier unless it is unreasonable, arbitrary, or capricious. (Third Division Award 26160). The Board finds the discipline of dismissal reasonable for both offenses. Gross malperformance constitutes a dismissive offense to prevent the dangers associated with such conduct.

"Rule G, by its very terms, constitutes a dismissive offense. Finally, the Claimant had been reinstated only six months earlier after being dismissed for a Rule G violation. Therefore, the Board finds the discipline of dismissal reasonable in this case, and the Board denies the grievance."

Third Division Award No. 30723 (Zamperini)

"The Carrier did not err when it asked the Claimant to begin the process of taking the Random Drug test when he arrived ten minutes before his scheduled start time. First, there was unrefuted testimony that the Bridge Operators customarily relieved there co-workers early. The Claimant had come prepared to begin work. Secondly, the Claimant was not called out to work, but was merely asked to start the paperwork for his drug test once he arrived at the parking lot. It is not as if he were accosted in an unrelated parking lot. He was approached where employees parked for the purpose of reporting to work and he never once objected to the timeliness of the request. Besides, there is little doubt in the Board's mind that the Claimant would not have actually begun the testing until after start of his tour of duty even if he had cooperated. The fact remains, however, that he was asked more than once to take the test after the start of his shift. He refused at that time. Therefore, he was in violation of the FRA Random Drug Test Regulations. The appropriate penalty was a nine month suspension.

"The cases cited by the Organization all dealt with testing based on probable cause. They had nothing to do with Random Drug Testing as required by the FRA Regulations.

"The Board believes there is sufficient evidence the Claimant was guilty of refusing to take the Random Drug Test. The penalty issued was governed by law."