culpability did, on October 15, 2001, dismiss Claimant from its service. The dismissal letter read, in pertinent part, as follows:
At the outset of the Investigation, Clsknanrs Representative asked it the purpose of the Investigation was that Claimant tested positive for drugs. When the Hearing Officer mafimrod what the notices (the original and the postponement) road, the Representative produced a copy of the letter from the testing facility stating the drug test for September 11, 2001, was negative and requesied the Investigation be cancelled.
The Hearing 0111cer then requested a roes" and stet minutes later reconvened the Investtgation stating a typographical error occurred and the Investigation would continue. The Carrier then set out to establish that Claimant failed a broathalynr test taken at 7:46 In the morning.
Rule 1.5 does prohibit the use of, being in possession of, or having any such prohibitive substance In their bodily fluids.
The random teat for prohibitive substances came about because Claimant on or about lab October of 1998, was allowed to resume service following a violation of Rule 1.5 with the caveat that for the next 6 years he would be subject to random tests for prohibitive substances. In August, 1998, Claimant was given a foikrw-up test, although positive for alcohol, was deemed Improper and Claimant was returned to service after he once again abided by the toms of reemployment set forth by the 811sdical Department The breathalyzer Last was fatally flawed.
Page 3 PLC No. Sa5bin this Instance, Claimant once again blow .04 at 7:45 AU when first tested and allegedly .03 approximately for the second test The first positive test in excess of .02 in to be followed by a second test no earlier than 15 minutes after the first test
The only problem was that the first tester's machine malfunctioned and the results could not be printed out in ku thereof, the tester wrote the screen reading on the front of the breath alcohol teat form
Allegedly, the taster waited 18 minutes, then retested. He then used a compatriot's machine to print out the second reading.
From the outset, this Board finds the breathalyzer equipment mathrnctioned. If the Carrier Intends to use the findings of the breathalyser to discipline an employee, it is ImperatNe that the equipment function properly and that the operator correctly uses the equipment
Secondly, them in a discrepancy In the time lopes between the first and second tast Claimant testified S was only 12 minutes between tests.
The Carrier countered the time gap argument with a letter supposedly from a company employee famitier with the testing equipment that the time set reflecting the second lest was 18 minutes later and not 12 minutes as testified by the Claimant
Even though the malfunctioning breathalyzer equipment in sufficknt reason to sustain the claim, the major flaw in the process was charging the employee with and dismissing him for tenting positive for drugs when in fact the drug test on September 11, 2001, was negative. This is more than a typographical error. Claimant's record would be forever flawed M this dismissal charge stood as is. ,
jobs when such charges of either being in violation N they test positive, either for alcohol or Illegal drugs, but there Is a dtffsrsncs. The charge letter and the discipline should so reflect one or the other or both, whict»ver is applicable.
All of Claimant's senlorlty b to be reinstated. He Is to be paid for all time lost from September 11, 2001, until he resumes work providing he successfully pores a return to service physical which includes a last for drugs and alcohol.
One other caveat of Claimant's return to service Is the random testing that commenced in October, 1998, that is for five years. This Is to continue and Carrier can increase tit period for random testing by the same period Claimant was out of service in this instance.
This Board, after consideration of the dispute Identified above, hereby orders that an award favorable to the Claimant(s) be mads. The Carrier b ordered to make the award efetive on or before 30 days following the dab the award is adopted.