AWARDS 88 - EMPLOYEE FAILS TO PROVIDE NEGATIVE DRUG SCREEN RESULTS WITHIN THE TIME LIMITS SET BY CARRIER

Second Division Award No. 12083 (Prover)

"In the March 14, 1989 letter the Claimant was offered the opportunity to contact the Employee Counselor, who could recommend a sponsored treatment program. The Claimant elected not to enter a program.

"The Claimant failed to produce a negative drug screen within the time limit set forth in the March 14 letter, i.e., by April 28, 1989. Under date of May 12, 1989, the Claimant was notified to attend a trial in connection with the following charge:

"`Your failure to comply with the Conrail Drug Testing Policy as you were instructed in the letter dated March 14, 1989, from Medical Director O. Hawryluk, M.D., in that you did not, within 45 days of that letter provide a negative drug screen.'

"The trial was postponed by mutual agreement until June 8, 1989. Following the trial the Claimant was notified under date of June 15, 1989, that he was dismissed; having been found guilty of the charge.

"The Employees argue that the Carrier violated Rule 6-A-3(a) because the hearing was not held within 30 days of March 14, 1989. Rule 6-A-3(a) reads in part, as follows:

"`The trial shall be scheduled to begin within thirty (30) calendar days from the date the employee's General Foreman or equivalent officer had knowledge of the employee's involvement.'

"The issue of a time limit violation was not raised at the trial. The basis for discipline in this case was not the results of the March 6, 1989, examination but rather the Claimant's failure to comply with the instructions contained in the March 14, 1989 letter. The Claimant's failure to comply with the instructions did not become evident until midnight April 28, 1989. On May 8, 1989, the Medical Director notified Avon Diesel Shop Manager of the Claimant's failure to comply with the March 14 instructions. By notice dated May 12, 1989 the Claimant was notified to attend a trial on May 18, 1989, subsequently postponed to June 8, 1989, by mutual agreement.

"It is our conclusion that the 30-day period provided for in Rule 6-A-3(a) began in this case on May 8, 1989. The trial was scheduled for May 18, 1989, therefore the Carrier fulfilled the requirements of Rule 6-A-3(a) and no violation of the Rule took place.

"The Employees contend that certain documents (evidence) were not produced at the trial. Our review of the transcript of the trial indicates the documents were available to the Claimant and were made part of the trial record. There is no basis for the Employees' contention.

"The Employees also argue that the Carrier used Claimant's prior discipline record as the main basis for disciplining him. It is a well-established principle that a Carrier may use an employee's past record in determining the amount of discipline to be assessed. We are not in a position to determine how much weight the Carrier gave Claimant's past record in this case, however, the Claimant in this case was found guilty of insubordination, a very serious matter; even more so when the insubordination is related to the use of drugs.

"The Employees lastly argue that the Carrier failed to adequately support the charges. Our review of the trial indicates it was conducted in a fair and impartial manner. While the Claimant's representative raised several objections during the trial we do not consider the objections were well founded. At the trial the Claimant was given every opportunity to present evidence in his own behalf. He admitted to receiving the March 14, 1989 letter but gave no explanation or reason for not complying with the instructions contained therein.

"It is our conclusion that the Claimant was guilty as charged and that the Carrier's dismissal of the Claimant was justified and warranted."