The Claimant is a Truck Driver who had 13 years of service with no prior disciplinary record at the time of his dismissal. On February 6, 1991 he was required (with other Truck Drivers) to submit to a periodic physical examinations required by the Interstate Commerce Commission. The examination routinely calls

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for a drug test by urinalysis. The Claimant signed the necessary consent form and provided a urine sample. The Nurse found a gross temperature deviation in the sample from the claimant's body temperature. The Nurse determined, based on her knowledge and experience, that the sample was not made from a current urine stream of the Claimant.

The Claimant was advised to remain and provide another urine sample. Despite consuming large quantities of water, the Claimant insisted he was unable to provide a urine sample. After several hours, he left the facility. Hearsay testimony was to the effect that he was observed by several employees urinating outside the facility near a dumpster.

As a result of these circumstances, the Claimant was subject to an investigative hearing for "dishonesty" and was subsequently dismissed from service.

During the investigative hearing, the Claimant denied that he had failed to provide his own urine sample and also denied that he had gone outside to urinate.

The providing of a urine sample which is in fact not the employee's own urine is, of course, a serious offense. It can only be interpreted as an attempt to pass a drug test under false pretenses. The consequences can be the continued employment -- in this instance, in the sensitive position of operating a vehicle -of an employee who has drugs in his system.

In this instance, however, the Board finds the penalty of dismissal may be unduly harsh. The Claimant is a 13-year employee

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