On April 11, 1986, Claimant reported for duty at 6:00 a.m. Following a truck trip to the work site with other employees, Mr. Tamez attended a safety meeting. At that meeting, his Foreman was concerned with respect to his behavior and appearance. Th,e Foreman indicated that Claimant's eyes were red and his pupils were particularly small. The Foreman's observations were corroborated by three other members of the crew. The Foreman then
asked Mr. Tame< twice to take the urinalysis to indicate whether indeed 17e was under the influence of any drug or alcohol. Mr. Tamez refused, on constitutional grounds, feeling that such a test would violate his right of privacy. Since he would not agree to the test, tie was removed from service. Followina a formal investigation, held on April 25, 1986, Carrier- concluded that he was in violation of Rule G, being under the influence of alcohol and, furthermore, he was insubordinate in refusino to provide a urine sample for toxicolooical testino. He was dismissed from service.
The Oroanization maintains that Carrier's basis for sustaining the charges against Mr. l'amez were insufficient and merely superficial. For example, the Organization argues that Carrier based its case on suspicion of unnamed employees, in a rather crude test, trying to measure the pupils of Mr. Tamez's eves. The fact of the matter- was, according to the Organization, that Claimant was under treatment by an eve doctor for a growth in his eves, arid therefore, this could explain the blood-shot appearance.
3 Furthermore, according to the Petitioner, his refusal to submit to the urinalysis was because he felt that it violated his constitutional right to privacy and should not be held against him. It is far from an adequate basis for termination, according to the Petitioner.
As the Board views- it, the refusal of Claimant to take the urinalysis- test was, at least, marginal in terms of its materiality with respect to termination. Many individuals feel that such tests violate their rights of privacy. Of course, the presumption also exists that such action, on the part of employees, is damaging with respect to the possibility of their being under the influence of- an intoxicant. In this instance, as the Board views it, there was enough suspicion to warrant Carrier's conclusion that Claimant was under the influence of some intoxicantand, hence, violated Rule G. However, this evidence was not substantial and, as the Board views it, was insufficient to justify the ultimate penalty of dismissal. Tfiis is also supported by the fact that, during the previous 12 months, Claimant had missed but two days of work, which hardly seems to indicate that he was an alcoholic or had any other habitual problem. The record indicates, the Board believes, that his tine out of service is sufficient penalty, under all the circumstances, and, therefore, he should be put- back to work subject to a returnto-work physical but without -pay for time lost which will constitute a disciplinary lay-off. AWARD