BEFOi.E AMERICAN
e'sIRRLINES TRANSPORT UOR~ERS '01710'&l
1114141 AREA BO= 0? ADJUST;-1iNT
ARBIT?.ATION IN TEE i·'1TTER ) '
1-i-2 46-91 (E. Santugada)
Betdeea )
· ) Izzue: Discharge
'~^'~IC.·"_t 7%%IRLIS'3, I1;C. )
-and- ) Area Beard of -1djustmem'c
Ha:-vin :,ill, Jr. (1,eutral )
n-, -nnT .__
:_ F.\3___.~ F:G_._.~::5 U:.1011 O ) Paul Lee (w~:,oyer)
aXiRICA, Local 568, AFL-CIO ) Jack Batena : (Union)
Preliminary Statement
Hearings were held before the Miami Area Board of
Adjustment on November 20, 1991, and December 6 & 7, 1991, at
the Travelodge Hotel, 301 N.W. 36th Street, Miami, Florida.
The parties appeared through their representatives and
entered exhibits and testimony. The record was closed on
that date. An executive session was held in Chicago,
Illinois on January 2, 1992.
Anpearances
For the Company:- William O. Kelly, Esq., American
Airlines, Dallas, Texas.
. For the Union: Lee Seham, Esq., Seham, Klein & Zelman,
New York, New York.
I. BACKGROUND AND FACTS
on April 17, 1991, Mr. Enzo Santagada was held out of
service for testing positive for cocaine metabolite pursuant
to a random drug test. On April 29, 1991, following a 29 (f)
1
heairng, Mr. Santagada was issued a Final Advisory, which in
relevant part reads as follows:
On April 11, 1991, you submitted to a random drug test
which was conducted in accordance with the Drug and
Alcohol testing.policy of American Airlines. Your test
' was positive for cocaine (metabolite), an
illegal/ illicitly used drug. Your actions are a
violation of Company rules and regulations which state:
Rule 33: Possession, dispensing, or using a.
narcotic,. barbiturate, rood-ameliorating, tranquilizing,
or hallucinogenic drug, whether on duty to off duty,
except in accordance with medical authorization, is
prohibited.
In view of the above you services are terminated
effective April 29, 1991.(Co.
Ex. 16).
On April 23, 1991, Mr. Santagada filed the following
grievance:
I, Enzo Santagada, was pulled out of service on 4-17-91
for medical reasons. The security of this UA test was
not accurate. I grieve full back pay, no loss of
seniority, and return to service immediately. (it.
Ex.
2).
An attempt was made to obtain an adjustment of the
dispute in the manner provided under the parties' collective
bargaining agreement. Failing to reach a satisfactory
adjustment, the matter is now before the Miami Area Board of
Adjustment for final and binding arbitration.
' II. THE ISSUE
The issue is whether Enzo Santagada was discharged for
just cause and if not what shall be the remedy.
III. POSITION OF THE COMPANY
The Company submits that there is just cause for the
termination of Grievant's employment. The Employer's version
of the facts giving rise to Grievant's discharge, and
2
i- 1 w .e
management
S
argument on
Y.11e ,. `,_c1'1u5,
1S as
iO11Gl:S:
1:r. Santagada was tested en April 11th between the
hours of 5:30 and 6:00 p.m. by an outside contractor, Michael
Guelbenzu, working for Life Data Labs. 1:r. Santagada gave a
specimen and sought to give a split sample but was unable to
provide enough specimen for a split sample. He proceaded to
drink water in an effort to be able to increase the volume to
60 cc's.
During that process,
another employee
of American
Airlines, an unidentified pilot, appeared at the collection
site and the collection for that individual started.
According to the Company, Mr. Guelbenzu took precautions to
ensure there was no confusion of the two speci-ens. As it
turns out the pilot was unable to provide a specimen. As
such, he was also in the posture of drinking water.
At this point, fir. Santagada came back and
indicated he changed his
mind about
providing a split sample.
The sample he had previously provided clearly showed that it
had been poured into the collection
container and
cup with
the cap placed on it. That was sealed. I-fr. Santagada signed
the seal that was placed on top of the bottle, he signed all
of the paperwork that was presented to him
acknowledging and
,certifying that it was his specimen and that all the proper
procedures had been duly followed. He did not raise any
question during or immediately after the collection with the
collector. Moreover, the Grievant did not ask the collector
to be given the opportunity to take another test.
According to the Company, shortly thereafter, the
Grievant stated that he had second thoughts about the
collection process and the presence of the pilot in the
collection site. Instead of returning to the collection
site, he talked to his shop steward and discussed the
propriety of the collection he had undergone. The next day,
through his Union, Grievant raised a question about the
collection and offered at that time to take another test. He
was advised by the Company, based on the representations that
he had been made to
management, that
there was no requirement
that he take another test and that the test was going to be
canceled.
on the 17th of April, the Harris Medical Lab
which, at that time, was a NIDA certified lab, reported to
the Company's medical review officer (MRO), W. L. Brawley,
M.D., a confirmed positive test for the cocaine metabolite.
(Co. Ex. l0). According to the Company, the i·MO followed the
3
procedures set out for medical review officers and went
about verifying the test. (Co. Ex. 11).
Several days following his initial conversation
with Mr. Santagada, following conversation with the
collector, and following a conversation with a Department of
Transportation official, the bP0 verified the test positive
for
the cocaine metabolite. As a result' of that
verification, a 29 (f) hearing was held and th- Grievant's
employment was terminated.
Arau-ment or,L the jerits
The Employer argues that this case can be resolved by
looking at
the credibility of tha witnesses. Idanagement
asserts that the testimony of Michael Guelbenzu should be
credited over that of Enzo Santagada.
With respect to what happened during the
collection process, Michael Guelbenzu testified that at the
time of the collection, he had been a collector for Life Data
Labs for approximately two and
a
half months. He had
completed, at that time on a daily basis, close to 500
collections. He had undergone a two week training period in
which he worked with an experienced Life Data collector and
observed him do collections. Guelbenzu performed collectins
while being observed by his trainer. He stated that he had
not had any of his collections challenged in the past.
Guelbenzu indicated that the Grievant was brought
to the collection site by Supervisor of Passenger Service
Debra Garner, who also notified Santagada that he was to
undergo random testing. Guelbenzu's testimony was that he
obtained positive identification from the Grievant and
explained the process to the Grievant, gave him the
collection cup, and indicated to him the amount that was
required. Grievant initially indicated he didn't think he
could provide it. Guelbenzu testified that Grievant did go
into the stall and was able to provide just 60 milliliters.
The Company notes that Guelbenzu stated that
because Snatagada was interested in providing a split sample,
he needed to provide additional specimen, that the 60
milliliters was inadequate to provide a split sample. He
said that he poured the specimen in a container, capped it,
and put it to his left on a counter. He then gave Mr.
Santagada the opportunity to drink water so that he could
increase the volume. Guelebnzu admitted stepping outside for
4
a moment, (H. 59) although he admits that he never left the
restroom while the pilot was in there. (3. 60).
It was Yr. Guelbenzu's testimony that he
(Grievant) understood the collection process. It -vas his
testimony that had Mr. Santagada come back and provided
enough for a split sample, he would have poured out the
initial collection. The plan was not to allow him to void
the additional specimen into what he had already given, but
instead of sealing the bottle when Mr. Santagada provided it,
he capped it and put it to the side on the counter.
In mane,ement's eyes, the collector in this case
was only attempting to acco--odate the Grievant by allowing
hire to have the opportunity to provide the split sample,
which Grievant indicated he did want to provide. It is clear
from the testimony of Guelbenzu that the collection site was
under his control throughout the entire process, and that
only he had a key to the collection site, that no
unauthorized person entered the facility. The specimen that
had been provided by Mr. Santagada was on the counter, was
capped, and was away from the pilot when the pilot entered
the restroom. There was no way the pilot could have tampered
with Mr. Santagada's specimen since the pilot was at no point
in the restroom alone with Mr. Santagada's urine specimen.
The Company argues that Mr. Santagada was only out
of the restroom for approximately five minutes and that
during that period no one (other than the pilot) entered the
restroom and that the collector was present throughout that
time. The process was completed with the execution of the
custody and control form. (Co. Ex. 7).. No questions were
raised
throughout this
process by Mr. Santagada. At no point
during the process did Grievant indicate to Guelbenzu that he
had a problem with the process, that he thought the process
was not working right, or that he was concerned about any
issue. Under the Employer's version of the facts, Mr.
Guelbenzu did not tamper with the specimen provided by Mr.
Santagada and there is no basis to suspect that he would have
a reason or basis for tampering with the specimen.
.The Company has not presented Mr: Guelbenzu as an
expert on the DoT regulations in this case and he was 'not
required to be an expert. He was a collector and he had
detailed instructions about how a collection was to be
performed. He is not an employee of the Company and, for the
past several months, he has not had any relationship
whatsoever with the Company. Guelbenzu testified on his own
time and has no interest whatsoever in the outcome of this
5
i
matter, unlike the Grievant who has an interest in the
outcome.
Management points out that the Grievant signed a
certification that the urine was his urine, although now he
says he did not read those certifications. If Grievant
suspected problems in the procedure after leaving, why didn't
he go back and protest to the collector?
Further attacking the credibility of the Grievant,
the Company submits that Santag=da made several statenants to
the Company's 1-MO in the course of his investigation. He
originally told the
1ao
that he left the specimen in the
bathroom. Later he said that he may have given it to the
collector. Grievant gave the HO tha impression that he made
two or three attempts to complete the 60 milliliters.
IT
o;; ha
says that's not what he meant. He told the 1-U;O that when he
finished the collection, he decided not to stay for the split
sample. Now he says he was never told anything about the
split sample. The Employer argues that this shows that
Grievant cannot be believed.
With respect to the Union's attack on the
competence of the Company's 1·B70, management argues that Dr.
Brawley was well qualified to serve as an 1·iRO. Under 49 CFR
Part 40.33, which provides that the MRO shall be a licensed
physician with knowledge of substance abuse, Brawley's
knowledge in this area has not been challenged. A review of
the regulations does not reveal that the iTR0 has to be
intimately involved with each and every provision in the
regulations.
With respect to the Union's argument that Dr.
Brawley breached the Grievant's privacy by contacting him at
work through a supervisor, the Company notes that once
Brawley received the confirmed positive test and determined
that things' appeared to be satisfactory, he contacted the
employee. The Company argues that if the FAA approved drug
testing custody and control form only allows one single
daytime phone number by the employee and that is the phone
number that Dr. Brawley called, this Board needs to take this
into account. Further, Dr. Brawley wears two hats as the 7.70
and as the area medical director for American. It is not
unusual for him to. call managers and supervisors seeking
employees on issues other than drug testing. If Dr. Brawley
called the supervisor, it does not automatically mean that a
drug test is involved.
As a result of the version that had been presented
6
by the collector, as well as the issues that were raised by
Mr. 'Santagada, Dr. Brawley proceeded to contact the DOT to
review the circumstances of the collection. The DOT
responded to his inquiry by saying that, based on the
circumstances he described, the collection process, as stated
by the collector, was valid and that, in fact, "I was
obligated to rezove the mechanic from safety related duties."
The company submits Dr. Brawley acted properly and that his
decision to verify the drug test results was correct.
Concerning the
presence of the second donor while
Mr. Santagada's collection was taking place, while the'
Company has 'acknowledged the presence of a second donor (a
pilot), it asserts that there has been no 'showing of
prejudice by the Grievant. The presence of the pilot did not
impact the security of the specimen and did not distract the
collector to prevent him from co-pleting him. Santagada's
collection. It did net cause confusion in the identification
of the specimens. The presence of the pilot does not offend
the regulation to the
extent that
it should require the.
rejection of the test.
With regard to the contrary position taken by the
Grievant and the Grievant's expert witness, Mr. George Ellis,
management submits that Mr. Ellis is not a medical doctor
,and, accordingly, he cannot be a medical review officer under
the regulations.
Management suggests that in some parts of 49 CFR
Part 40, the DOT clearly and specifically states that a
violation of that part or subpart requires a test to be
nullified. If the DOT had intended that violations of the
subsections that are at issue to require automatic
nullification of the test, they could easily have written
this into the regulation as they did with other parts of
their
regulations. The
fact that the DOT put a test
nullification provision in some subsections of the regulation
and not in others means that they did not intend that the
violation of those subsections would automatically require a
nullification of the collection process.
'Concerning the status of the Harris Medical Lab as
an NIDA certified lab, management concedes that in July of
1991, several months following the testing of Mr. Santagada,
Harris Medical Lab's certification was suspended by the
National institute on Drug Abuse. The Employer contends that
as far as this Grievant is concerned, it has no impact
whatsoever. At the time the Grievant was tested in April of
1991, Harris was still certified and its certification was
7
intact. Secondly, NIDA, at the time it suspended Harris'
certification, was empowered under the regulations to direct
that Harris send any positives out for retesting; they did
not do that, but, most importantly, in August, following the
suspension of Harris' certification, American Airlines' 1M0
directed that Mr. Santagada's test now be taken and be sent
to Smith ?:line, a NIDA certified lab. The results of that
test was to confirm the presence of cocaine. Accordingly, it
is management's position that the suspension of Harris'
certification in July of 1991 has not impacted or undermined
the validity of the positive drug test that was performed on
the sample provided by Santagada.
Addressing the allegation that American .rras in
some way cblicate_d to cancel the test as a result of
statements made by management, it is the Employer's position
that this representation must be examined in light of the
fact that statements were made based on one side of the story
-- statements made prior to a detailed and thorough
investigation of the collection.
Accordingly, for all of the reasons identified, it
is the Company's position that the collection that was
performed on Enzo Santagada on April the 11th, 1991, was a
valid test performed in reasonable accordance of the federal
regulations and, therefore, the Board should conclude that
`the Grievant's termination was based on just cause and that
his grievance should be denied in all aspects.
IV. POSITION OF THE UNION
The Union's position is that there is not just cause for
the termination of the Grievant's employment.' The Union's
version of the facts, along with its supporting arguments, is
as follows:.
Aside from.the tainted drug test, every piece of
evidence indicates that Mr. Santagada is drug free. There
are no' present or. past indications of drug use. No
supervisor has ever complained of Enzo Santagada exhibiting
behavioral cues which indicate drug use. In no respect does
Mr. Santagada fit the profile recognized by arbitral law and
specialists as indicative of a drug user. Mr. Santagada has
a record of arriving at work on time~consistently. He never
left work early and his sick leave requests are virtually
nonexistent. His finances are steady as indicated
by
his
purchase of a home. ,His four-year stint in the Marines a few
8
years prior to his career at American Airlines involved
extensive random drug testing which he passed at all times,
no complaints, only corz.2ndations from his supervisors in
terns of his work performance.
The question in the Board's mind should be how to
square the uncontroverted evidence about the Grievant with
the single piece of evidence proffered by the Company--the
test. The union believes that the conflict is easily
resolved when the following considerations are noted:
Both Mr. Guelbenzu and Dr. Brawley have confessed
their ignorance of the federal law which regulates the drug
testing procedure. tleither could even identify the
applicable federal law despite the fact that both were
required to sign certifications whereby they swore that the
collection and review process had been conducted in
accordance with the same federal law.
The Union notes that the FAA implementation
guidelines, at Part V, state as follows: "While this document
is intended to serve as a guide to the essential requirements
of the FAA's anti-drug regulations and should prove helpful
to those in aviation who are required to establish anti-drug
programs, the controlling guidance is found in the Department
of Transportation DOT/Office of the Secretary (OST) interim
`final rule, Procedures For Transportation Workplace Drug
Testing Programs, (49 CFR Part 40: 53 FR 13 47002), which
establishes procedures that employers must follow when
conducting drug testing." The publication of the guidelines
was prior to a final rule issued by the DOT which superseded
the interim final rule. The final rule was dated December 1,
1989, and is found at 49 CFR Part 40'. Similarly, the
relevant FARs in Appendix B at Page 47057, Appendix I, at I
states, ."Each employer shall ensure that drug testing
programs conducted pursuant to this regulation comply with
the requirements of this appendix and the "Procedures for
Transportation Workplace Drug Testing Programs" published by
the Department of Transportation (DOT) (49 CFR Part 40).
The Union maintains that 49 CFR Part 40 is the law
of the land in terms of. transportation industry,drug testing.
On Page 49869, Section 40.25(f), it requires that,
"The following minimum precautions shall be taken to ensure
that unadulterated specimens ' are obtained and correctly
identified." The minimum precautions under Subsection
(f)(17) state: "Both the individual being tested and the
collection site person shall keep the specimen in view at all
9
times prior to its being sealed and labeled."
The Union asserts that even under Mr. Guelbenzu's
version of events, there were at least 20 minutes during
which the Grievant's unsealed specimen was out of the
Grievant's view and in the custody and control of Mr.
Guelbenzu and an unnamed, unidentified pilot.
A second "minimum precaution" is contained 'under
(f)25(ii) which states, "The collection site person shall not
leave the collection site in the inter-,7al between
presentation of the specimen by the employee and securemsnt
of. the sample with an identifying label bearing the
employee's specimen identification number (shown on the urine
custody arid control form) and seal initialed. by the
employee."
Once again, even under I:r. C-uelbenzu's version of
events (R. 59-60), the regulation was violated when he left
the collection site in clear violation of (25)(ii).
A third mandatory regulatory provision is
contained in. Section 40.25(d) which states, "In order to
promote security of specimens, avoid distraction of the
collection site person and ensure against any confusion in
the identification of specimens, the collection site person
'shall have only one donor under his or her supervision at
any time. For this purpose, a collection procedure is
complete when the urine bottle has been sealed and initialed,
the drug testing custody and control form has been executed,
and the employee has departed the site (or, in the case of
employee who was unable to provide a complete specimen, has
entered a waiting area)."
For a third time, even under Mr. Guelbenzu's
version 'of events, this regulation was violated.
All three of these regulations must be considered
in the light of 49 CFR Part 40 Section 40.33 (b) (3) at Page
48975 which; in describing the NlltO's responsibilities, states
in no uncertain terms that, "The MRO shall not, however,
consider the results of urine samples that are not obtained
or processed in accordance with this part."
The plain language of federal law establishes that
the drug test in question has no evidentiary value.
Consequently, even assuming arguendo the veracity of facts as
presented by the Company's witnesses, the federal regulations
mandate that these test results not be considered -- that the
10
Company's only piece of evidence should not be considered.
With respect to the Company's I-M0 the Union
submits that Dr. Brawley admitted that ha never read 49 CFR
Part 40 in its entirety, even though that part is only 10
pages long. Further, not once did Dr. Brawley give testimony
concerning his own opinion. Responsibility for the decision
was always attributed to a DOT representative of unknown
qualifications, a DOT representative whose opinion from afar
is unsupported by any rationale and which was not admitted
for its truth.
Union Exh. 8, an official DOT publication, states
at Page 5 with regard-to collection procec:'_res: "The IF.-^,O rust
know precisely how these steps are carried out." Dr. Brawley
did-not know Step 1. Legally speaking, the Grievant's test
was never verified as required under 49 CFR Part 40.
The only expert that the Company and Board heard
from during the hearing was George Ellis. To irpeach ?r.
Ellis
is to concede that Mr. Santagada's test was not
verified in any way, shape or form, directly or indirectly.
Unlike Dr. Brawley, George
Ellis
was not just a conduit for
the opinion of a phantom DOT representative.
The Union maintains that both Dr. Brawley and
George Ellis took the position that, if the Grievant's 60
milliliters had been provided in two separate voids, the test
would be invalid under 40.25(f)(10)(i). At the outset-of the
hearing, however, the. problem remained that Mr. Guelbenzu's
affidavit stated that the 60 milliliters was provided in one
void whereas Mr. Santagada's position was that there were two
voids.' This factual dispute was, for all intents and
purposes, eliminated at the hearing. Whereas the Grievant
restated'his position with confidence, Mr. Guelbenzu stated
(as both the Company and the Union stipulated at R. 61 & 190)
that it was "possible" that the 60 milliliters was the
product of two separate voids. Dr. Brawley, in his
testimony, conceded the dispositive nature of this admission.
When the question was put to Dr. Brawley whether he would
have canceled the test if the collector had told him that it
was "possible" that there had been a double void to provide
the 60 milliliters, Dr. Brawley stated in one of his few
forthcoming responses that he would have canceled the test.
The Union-submits that this issue, in-and of itself, is
dispositive of the case.
The Company has conceded that, if the Grievant's
version of events surrounding the specimen collection were
11
true, then the test should have been invalidated--that given
the Grievant's version of events, it is not much to the
credit of the company since the Grievant's events included
testimony that the collector had propped the door open in the
midst of a heavily transited hallway and turned his back on
the open door and .walked to an opposite end of a-short
hallway to put his cigarette out leaving several people to
his back in front of the open door. -
Consequently, another means of addressing the
admissibility of the Company's only piece of. evidence is
- whether the Company's single witness to the collection, k:r.'
Guelbenzu, was more credible than the Grievant. The Union
submits that Mr. Guelbenzu was not at all credible and, in
this respect, offers numerous references to the record
indicating conflicts.
According to the Union, the Company tries to deal
with Mr. Guelbenzu's disturbing ignorance of federal law by
shifting responsibility for enforcement of federal law from
the professional collector performing hundreds of tests per
month to the employee, to the Grievant. The burden cannot be
shifted to an employee. The Company's effort to shift
the
blame and the responsibilities is unjust in light of their
failure to provide written .instructions to the individual
donor explaining the collection process as is their
.-obligation under 40.23 (d)(2)(ii).
The one other attempt the company makes to
undermine the credibility. of Mr. Santagada is that he signed
a split sample document that he didn't read but the Board
must remember that the collector instructed him to sign and
that the penalty for failing to cooperate in a collection
procedure under the company's own regulations is termination.
The Company admits that, on the day after the
collection, 'it. made the decision to void the test and
informed the Grievant. that same day of its decision. The
company has. made no assertion that the representative of
management who took this action, Mr. Bob Zell, lacked the
-necessary authority. Instead, the Company takes the position
that it should not be held to its solemn commitment on a
matter of termination because it was misled.
The Union maintains that the Company was .not
misled, and that is very clear from the testimony of the
company's own witness. The Grievant never spoke to the
company prior to its decision to cancel the test. Neither
Mr. Harris nor Mr. Zell
had any
contact with Santagada prior
12
to the cancellation of the- test. The testimony of the
Company's own witness, Mr. Harris, bears out that the
company's decision to cancel the test was based on factual
information from the Union that was not only consistent with
Mr. Guelbenzu's version of events, but actually omitted some
of the more egregious regulatory violations that Mr.
Guelbenzu has admitted to. Therefore, the Company's only
reason for failing to honor this commitment is *completely
discredited. Grievant relied on this commitment in canceling
a scheduled test at Eagle Forensic Laboratories which, unlike
the Harris Lab used by the Company, retains its NIDA
certification. But for the Company's promise, 2;r. Santagada
' would have been tested at a NIDA certified lab less than 24
hours after his first test. A negative result from that
laboratory would have been very strong evidence that he had
no cocaine in his system 22 hours earlier.
In summary, for the test in question to be granted any
evidentiary weight, the company must show by at least clear
and convincing evidence that the Board can reach each of the
following conclusions; (1) that the federal regulations
intend something other than their plain meaning; (2) that Dr.
Brawley is more credible than Mr. Ellis; (3) that Mr.
Guelbenzu is more credible than Mr. Santagada; (4) that the
'Company is not bound by solemn commitments made by its
representatives when these commitments induce the Grievant to
suffer a significant detriment such as foregoing an
opportunity to have a test at a certified lab within 24 hours
of his first test, and (5) that the Board would have to
completely discredit Dr. Brawley in order to defeat the
argument that the test is invalid because. of the double void
into the specimen because Dr. Brawley testified that, if a
collection agent had told him that it were possible that
happened, he would have nullified the test.
The union argues that the Board cannot reach any of these
conclusions, let. alone all five. It is ' the Union's
contention that every one of these five independently must be
decided against the Grievant in order for the test to have
any weight at all. The glaring, inescapable truth is that
. , the test results came from a laboratory which failed to meet
the minimum standards established by the federal government.
The evidence indicates that they were failing to meet these
standards at the time of Mr. Santagada's test. The problem
cannot be completely resolved by sending it to Smith Kline
Labs. No amount of retesting can compensate for a min;-up of
specimens at the laboratory.
' 13
With respect to the remedy, the Union argues that Mr.
Santagada has endured eight months of unemployment. He has
suffered intense emotional strain, financial hardship and has
almost lost his home. He has not been able to provide his
wife or young child for eight months with the things he felt
they needed and deserved and now he faces an impoverished
Christmas. In the context of an honest Company 'error, all
these hardships would be irrelevant. In the context of the
Company's pursuit of a frivolous claim, which they themselves
called a raw deal and a setup, these facts cry out for more
than back wages and seniority. The Grievant and the Union
will not be made whole unless the Company is given some sign
that its conduct has been unconscionable and must not recur.
The Union accordingly rec^uests full backpay with interest and
an award of costs and attorney's fees for the proceeding.
V. DISCUSSION
The description of the collection process that Mr.
Guelbenzu gave this Board was essentially as follows:
Q. Could you describe what happened at the start
of that collection?
A. He (Grievant] was brought to me by the lead
agent, Debbie Grant and,- at that time, we stepped inside
the collection site.
He.stepped inside. The door was closed. I went with the
procedures of asking for identification, filled out some
of the necessary paperwork, and I explained to him about
' how much I needed, that's when I had the collection
container and I broke it open and handed it to him, and
from what I recall, he stated he had problems where he
had to use his'bowels. I said it's okay to do that..
,t
He went he went inside the stall, I was right--I opened
the door, I kept the door open for him to go ahead and
go, just, you know, and at that time, I stepped inside
and he came out and he handed me the container. (R. 5758).
He goes on to say,
14
I went back inside. At that time, he [Grievant] came out
of the stall and he handed me the cup. I explained to
him that it was enough for one sample.
Q. How much did he provide you?
' A. sixty milliliters, it was exactly enough and,
at that time, I explained to him how the split sample
worked. It was up to hin if he wanted to provide iae one,
you know, I ensured--I told him it was in his best
interest lie did have one so he stated he wanted to
provide one, that he was going to go outside and drin:c
. water. (R. 59).
During that process, another employee of American
Airlines appeared at the collection site and the collection
for that individual started. (R. 59). Guelbenzu took
precautions to ensure there was no confusion of the two
specimens, although the other individual, who was a pilot,
was unable to provide- a specimen. As such, he was also in
the posture of drinking water:
He couldn't do, said--he stated he needed some water and,
at that time, we both stepped outside. We were outside
maybe a minute and-- '
At this point, Mr. Santagada came back and indicated he
changed his mind about providing a split sample.
[S)o, at that time, we stepped inside the restroom again
and I explained to him again about the split sample and
how it works, it was to his best interest that he did
provide one, and he stated, "No, I don't want to wait."
(R. 60) .
The sample he had previously provided had been poured
into the collection container and cup with the cap placed on
it. That was sealed. .Mr. Santagada signed the seal that was
placed on top of the bottle, he signed all of the paperwork
that was presented to him acknowledging and certifying that
it -was his specimen and that all the proper procedures had
been duly followed:
I sealed all the seals that they initial. and they
put their Social Security number on them, and I sealed
everything, put it in the box, sealed the box, had him
sign the papers that he needed to sign and the test was
over. (R. 60).
15
£nzo Santagada tells a different story.
After arriving with Debbie Garner at the collection site,
Grievant stated that he was left with the collector, Michael
Guelbenzu. In an exchange with
counsel, Grievant outlined
the collection process as follows: '
Q. Did he [Guelbenzu] ask for your.
identification?
A, No, he didn't.
Q. What
happened then?
A. Then, w°e went into the room and he filled
. out the pap erc~-ork.
x
Q. Did you have any conversation with mr.
Guelbenzu prior to giving him the specinen?
A. Yes. I told him I couldn't give him any
sample at the tire. I had a small bowel movement at that
time. He told me to do the best I can and handed me a
cup.
Q. Did he ask you at that time whether you
wanted a split sample or not?
A. No.
Q. Did he ask you to wash your hands prior to
going into the bathroom stall?
A. No.
Q. Did you wash your hands?
A.' No, I didn't.
Q. Were you able to provide a urine specimen at
that time?
A. Yes, I was.
Q. How much urine were you able to provide?
A.
About 20 or 30 milliliters, I believe that
was it.. .
Q. Did you present that cup to i·Ir. Guelbenzu?
A.
Yes, I did.
Q. What was his reaction?
16
A. He laugh-ed and said that this wasn't even
enough. He r;ade a fanning motion over his face and said
I really stunk the place up.
Q. I don't know if I have to be this specific.
Was that in reference to your bowel movement?
A. Yes.
Q. Did he make any reconm. endations at this
point?
A. Yes. He told re to go out to the eater
fountain and drink some crater. Mean·4hile, he was going
to have himself a smoke and air out tha room.
Q. He was going to air out the room; how did he
air out the room?
A. He propped the door open and wedged
something underneath
the door.
Q. Did you go to get a.drink of water?
A. Yes, I did.
Q. Where was the water fountain?
A. It was down the hall and to the left.
Q. Islas there a clean line of vision between the
water fountain and the door of the specimen collection
area?
Q. Before you left to drink water, at that
point, did Mr. Guelbenzu transfer the urine from that
first cup [Co. Exh. 3] into a second cup [Co. Exh. 4]?
' A. No, he didn't.
Q. Were there any secure cabinets or other
spaces within the' bathroom where the specimen could have
been stored beneath a lock and key?
Q. You- said you were down the hall and around
the cbrner at the water fountain: did you see Mr.
Guelbenzu at any time when you were at the water
fountain?
Q. How did you come to see him if you didn't
have a direct view to the bathroom door?
A. He was standing by the ashtray which was by
17
,the pay phones smoking a cigarette.
Q. Did he look at you while you
were drinking
the water?
A. Yes, he did.
Q. You mentioned an ashtray: was the ashtray
against a wall?
A. Yes, it was.
Q. Would that wall have been opposite the
bathroom door?
A. Yes, it was.
Q. where would nave 14r. Guelbenzu's back been
facing while he was putting his cigarette out at the
ashtray?
A. His back would have been facing the test
room.
Q. After Mr. Guelbenzu put out his cigarette,
what did he do?
A. He proceeded back to the bathrcom.
Q. What did you do?
A. A few seconds later, I followed him back.
Q. .What was the status of the door as you came
back around the corner?
A. He was in the process of closing the door at
that time.
Q. You said it was kept open by some sort of
wedging?
. A. I believe he was putting something
underneath the door: I don't know what it was. I don't
recall what.it was underneath the door.
Q. .Did he have to remove that, whatever it
was
A. Yes, he did.
Q. So, as you followed him back around, what
happened; did you go back into the bathroom at that
point?
A. Ho. I was still waiting for the water to
take effect because I just took some water, and I didn't
have the urge to go at that time, so I went back to the
water fountain. '
18
Q. To drink some more water?
A. Correct.
Q. Did anything of note happen while you were
having your second drink of water?
A. Yes, that's when I noticed the pilot walking
down the hall.
Q. Did you see him go into the bathroom?
A.
]TO,
I didn't.
Q. What did you do then?
A. I was drinking water at the fountain. Then,
I went back to the area where the bathroom was and I was
waiting for the water to take effect.
Q. Was the bathroom door open or closed?
A. It was closed.
Q. Did you see the pilot anywhere?
A. No.
Q. Was Mr. Guelbenzu in sight?
A. No, he wasn't.
Q. Did you make any assuaptions at that tine
about where the pilot was?
A. I assumed he was in the room.
Q. okay.
So, there is a pilot and. a collector behind
a closed door; what did you do when you were faced with
that circumstance?
A. I was just waiting outside, waiting for the
water to take effect, and I went back to the water
fountain:
Q. Did the pilot eventually come out of the
bathroom?
A. Yes, he did.
Q.- Where was Mr. Guelbenzu when the pilot left
the bathroom?
,A. He was outside, also.
THE CHAIPYAN: outside of the bathroom?
THE WITNESS: Correct.
19
Q. (By Mr. Sehan) Did you resuma supplying
your urine specimen at this tine?
A. Yes, I went back in.
Q. what was the status of your specimen when
you
re-entered the coon?
A. It was in the original container.
Q. It hadn't been transferred into the shipping
container?
A. ITO.
Q.. Did it have any cover on it?
A. 1T0, not at all.
Q. where was it; do you remember where it was
located when you cai^e in?
A. Yes, it was on top of the counter.
Q. So, tell me again where it was, where your
urine was.
A. It was---
Q. In what container?
A. It was in the container that I originally
urinated into and it was left on top of the counter.
Q. okay.
You say that it was in the specimen
container that you had previously used; do you know that
for a certainty?
' Q. Was it marked in any way with your initials
or your security number?
A. No, it wasn't.
Q. Did you assume at that time, however, that
it'was your specimen?
A. Yes.
Q. What happened next?
A. I went back into the stall and I gave him
some more urine.
Q. Having drunk the water, were you able to
provide the necessary---
A. I tried to give him as much as I could. I
came out and he said that was enough.
20
Q. How much was it after the second attempt to
fill up the original container?
A. About 50 or 60 milliliters.
Q. Did Mr. Guelbanzu discuss with you the
option of having a split sample?
A. No, he didn't.
Q. From the tine you gave your first, I think
you said, 20 to 30 milliliters of urine to the tire you
provided that additional urine to bring it up to the 50
or 60 milliliters, how much time had gone by?
Q. For how much of this 20 minutes was your
specimen container out of view?
A. For the 20 minutes--by the tine--from the
time I was at the water fountain.
After you provided the SO to 60 milliliters,
what happened then?
A. Then, he took the sample, he poured it into
another container, he put a cap over it. It had 2 seals.
He put it in a box and had me sign something--some forrs.
~t ~
There is no dispute that under either version of the
facts numerous regulations were'violated in the collection
process.
49 CFR Part 40 (Procedures for Transportation Workplace
Drug Testing Programs), Section 40.25 (f), in relevant part
states: '
(f) Integrity and identity of specimen.
The following minimum precautions shall be taken to
ensure that unadulterated specimens are obtained and
correctly identified:
(17) Both the individual being tested and the collection
site person shall keep the specimen in view at all times
21
prior to its being sealed and labeled. [Federal
'Register, Vol. 54,
ITO.
230, Friday, December 1, 1989,
Rules and Regulations, at 49868.].
Even under the Company's and lir. Guelbenzu's version of
events, there were many minutes during which the Grievant's
unsealed specimen was out of the Grievant's view and in the
custody and control of Mr. Guelbenzu and
an
unnamed,
unidentified pilot.
A second "minimum precaution" is contain=d under 40.25
(f)(25)(ii) which states: ,
The collection site person shall not leave the collection
site in the interval betn:ecn presentation of the specimen
by the employee and securement of the sample with an
identifying label bearing the employee's specimen
identification number (shown on the urine custody and
control form) and seal initialed by the employee. If it
becomes necessary for the collection site person to leave
the site during this interval the collection site hall
be nullified and (at the election of the employer) a new
collection begun. (Id. at 49870; emphasis supplied).
Again, even under 14r. Guelbenzu's version of events (R.
,59-60), he left the collection site in violation of
40(f)(25)(ii). The Board further points out that the DOT
Drug Regulation Seminar 1990 handbook (Union Exh. 8), in
relevant part, declares:
If it becomes necessary for the collector to leave the
collection site between the tine that the specimen is
received and securement of the sample with an identifying
label bearing the 'appropriate specimen identification
number and seal initiated by the donor, then the
collection is nullified. (Union Exh. 8 at 25; emphasis
supplied).
A third regulatory provision is contained in Section
40.25 (d) which states:
(d) Access to authorized personnel only.
* ,t
In order to promote security of specimens, avoid
distraction of the collection site person and ensure
against any confusion in the identification of specimens,
the collection site person shall- have only one donor
22
under his or her supervision _at any tire. For this
purpose, a collection procedure is co=plete when
the
urine bottle has been sealed and initialed, the drug
testing custody and control form has been executed, and
the employee has departed the site (or, in the case of
employee who was unable to provide a complete specimen,
has
entered a
waiting area). (Id. at 49869).
Of particular relevance in this case is 40.25 (f)(10)(i)
which, in relevant part, provides:
Upon receiving the specimen from the individual, the
collection site person shall determine if it contains at
least- 60 milliliters of urine. If the individual is
unable to provide a 60 milliliters of urine, the
collection site parson shall direct the individual to
drink fluids and, after a reasonable time, again atter:pt
to provide a complete sample using a fresh specimen
bottle (and
fresh collection
container, if employer).
The original specimen shall be discarded.
This last provision is particularly important because the
parties stipulated that the following question was put to Mr.
Guelbenzu, "Is it possible that Mr. Santagada provided some
urine for the specimen less than 60 milliliters, went out to
drink water and, then, provided the rest of the 6o
milliliters?" The response was, "Yes, it is possible." (R.
190). Mr. Santagada testified that this is exactly what
happened. Dr. Brawley conceded that if Santagada's version
of the facts were correct, the test, should have been
nullified. In an exchange with Mr. Seham, Dr. Brawley went
on to elaborate that the test should be disregarded even if
there was a possibility that the specimen was the result of
more than one'void:
Q. [By Mr. Seham]: Why?
A. The statement that he made about giving the
urine and.leaving the cup fn the stall and coming back
and putting additional urine two or three times to get
the 66 cc's would have been inappropriate. (R. 221).
Q. So your decision to verify this drug test
necessarily involved a-credibility determination in which
you decided to credit Mr. Guelbenzu over Mr. Santagada,
is that correct?'
23
A. Correct.
Q. On what basis did
you
make that credibility
deternination?
A. There ware some inconsistencies in the
information that Mr. Santagada gave me from one story to
the next and the information from the collector %,as very
exact and precise and net the standards as I 'understood
them. '
Q. was ha exact and precise, as you put it, rbout
whether or not there had been repeated efforts to void
into the same container?
Q. What if, instead of being exact and precise,
the collector had stated to you over and over the phone,
"It's possible that Mr. Santagada returned to void in the
same container"?
A. If he had indicated that there was more than
one void into the same container, then that would have
given reason to invalidate the test.
Q. But what if he said it's possible, that he
wasn't certain one way or the other?
A. I--would indicate, you know, lack of his
control over the collection process,
and I
think it
would
have been an area of concern to me.
Q. Would you have nullified the test under these
circumstances? '
' A. Yes. (R. 223-224).
Dr. Brawley went on to testify that "I felt that the
collector did
maintain full
custody of the specimen at all
times."
(R.
251). . When asked about technical violations
that he
would
overlook if the donor wasn't able to keep the
specimen-in his view at all times prior to the sealing of the
specimen, Dr. Brawley explained: "As long as the collector
maintained his full control of the specimen at all times,
either by sight or lock, meets the DOT criteria as they've
been explained to me."
(R.
251-252). In a final exchange
with Mr. Seham, Dr. Brawley re-affirmed his view regarding
voiding into the same specimen container:
Q. On the other hand, if. urine was put on urine
in the same specimen container, that would be more than a
24
technical violation?
A. I've been told by the DOT both in our training
programs and additional guidelines that that would
invalidate a test, that would be what they call a fatal
flaw. (R. 252).
In summary, Dr. 'Brawley testified that if Guelbensu told
him that it eras possible that the 60 cc's were obtained as a
result of two voids in the same container,- the test would be
invalidated. Mr. Guelbenzu told the Doard that it was indeed
possible that the specimen was obtained as the Grieva)-it
stated -- that the sample was
the result
. of core tilun cr.=
attempt. Given the testimony of Dr. Braw1ey and 1.=r.
Guelbenzu, the Board has no choice but to invalidate the
test.
There is an additional reason to nullify this test and it
involves a credibility determination.
Dr. Erawley testified that he had one phone conversation
with Guelbenzu. He was not familiar with his training, he
had no'knowledge concerning his general background (including
criminal convictions or problems with substance abuse), and
he did not know whether Guelbenzu was terminated from Life
Data due to incompetence. (R. 224-225). Dr. Brawley did not
interview Grievant face-to-face, nor did he investigate
whether Santagada's behavior or work performance carried any
indicators of drug abuse. He had no knowledge about
Santagada's general health or record of tardiness or
absenteeism. (R. 225-226). Is there reason to. credit
Guelbenzu's testirony'over that of the Grievant?
At oral argument the Union outlined numerous facts that
give. rise to question the overall credibility of Guelbenzu.
Many of the Union's points are well taken.
Mr. Guelbenzu signed a certification whereby he swore
that the specimen, "has been collected, labeled and sealed in
accordance with applicable federal requirements." (Co. Exh.
7).* Mr. Guelbenzu signed such a certification despite
admitting ignorance of the regulations. Not only did he deny
any familiarity with the regulations (R. 73), but the Company
objected to questioning Guelbenzu
concerning the
regulations
because his ignorance had been so firmly established. (R.
81; 100). '
Mr. Guelbenzu also swore to an affidavit which the
Company submitted as evidence. In terms of the affidavit's
preparation, Mr. Guelbenzu testified at R. 104-05 as follows:
25
' Q. Before, you said someone instructed you what
to write in
the affidavit:
who was that?
A. No one--well, they just told me to write what
happened during the test; no one told r:a what to write.
Q. But who is that individual?
A. Dr. Brawley,
he's
the one that requested an
affidavit fro=m what I -recall.
Q. You said there .:as a supervisor?
A. I:y si:pervisor, yes. .
Q. Was he the one
who
drew the diagram?
Q. Did he assist you with the affidavit?
Q. No, he didn't read it?
A. He read it after I wrote it, yes.
A. I don't--not that I recall, no." He said,
"This is fine." I mean,,this is what happened.
Yet, at R. 94-95, Mr. Guelbenzu testified,
Q. Company 8, you say, is a copy of an affidavit
that you drafted at Dr. Brawley's request?
A. Yes.
Q. Did he ask you to make this diagram?
A. I think so. It was basically my supervisor
who instructed me exactly what to write and what to do.
Q. This was Mr. Hinojosa?
A. Mr. Hinojosa." .
The Union
notes that although at that point he was not
forthcoming about the diagram, the topic had come up and he
did note he initialed it, did not admit at this point to the
fact that he did not draft the diagram. At R. 96 he finally
admitted that the supervisor completed the diagram for him -a diagram which (in the Union's eyes) contains a very
significant distortion of the actual layout of the premises,
a diagram which indicates a direct line of view between the
collection site portal and the water fountain where Mr.
26
Santagada had
gone to
get a drink, a- diagram that, again, Mr.
Brawley had relied upon.
Again, regarding the affidavit, Mr. Guelbenzu testified
that there were no prior drafts. However, Mr. Lawrence Davis
testified that a very different version had been completed
and filed with Life Data Labs; that he saw it; that,
instead
of being three pages with a diagram, it was three-quarters of
a page, and that the style of writing teas very different,
lending considerable support to Mr. Guelbenzu's first
admission that he was told exactly what to write.
Still addressing the credibility of Guelbenzu, an
.omission in the affidavit which Mr. Guelbenzu stated
under
oath at the hearing concerned Santagada's bowel movement.
The comment was not solicited by any party, it was
' instinctive, impulsive. Mr. Guelbenzu probably thought, it
was a significant thing, yet it was not in his affidait,
but unprompted that came up in the hearing. It is not a
minor point but goes a -long way to explaining why the door
would happen to be propped open. Grievant had a bowel
movement and testified that there was a very unpleasant odor
from that bowel movement and that was the reason for the
collector responding, "well, I'm going to air this room out."
Given the room, how small it was, how a bowel movement might
'have affected the atmosphere in such a small area, and there
-was no circulation in that area, it's very credible that's
precisely what happened. Why was the reference omitted in
his affidavit? Perhaps, as argued by the Union he was told
exactly what to write by his supervisor.
other contradictions in Mr. Guelbenzu's testimony include
R. 88 where he stated that, in accordance with applicable
rules, he offered the.Grievant the split sample option at the
beginning of the collection procedure whereas, at R. 58-59,
he indicates that the split sample was offered after the
Grievant had already provided 60 milliliters. Which story
can be credited? . .
' Furthermore, and more puzzling, Mr. Guelbenzu's version
of events. do not fit the time format the Company's own
exhibits. set out. The company's exhibits indicate that Mr.
Santagada was picked up at 5:30 p.m. The testimony reflects
that it would have taken two minutes or so to arrive at the
collection site and the exhibits of the Company reflect that
the process would have been completed or finished around 6:05
p.m. There are over 30 minutes to account for, yet at R. 93
Guelbenzu says it took 10 minutes for Grievant to give the 60
milliliters and at R. 94 Guelbenzu indicates that the process
27
was completed' within five to 10 tiinutes after that. Mr.
Guelbenzu's version of events accounts for a little more than
half of the tire which the Company's exhibits indicate
transpired
during this
process. Mr. Santacada's version of
the events, which involved several trips to the water
fountain and more than one attempt to fill the same specimen
container, is much more plausible given the uncontrovarted
time span that was involved. '
13r. Guelbenzu also vas very confused about the
responsibilities regarding his job: '
Q. Was it your responsibility to make sure
samples were collected in conformance with federal
regulations?
Q. You couldn't delegate that to anybody, that
was.your sole responsibility?
Later, and in response to the question whether there had
been tampering or any violation that occurred with regard to
chain of custody, provisions in the federal regulations, what
he was supposed to do with the specimen, the witness
,indicated that he would keep it.until the supervisor came:
. . Q. Then, what would happen?
A. It's not up to me to decide.
Q. It is not up to you to decide what happens to
the specimen?
A. Not that I know. '
Q. You said you had the sole responsibility for
enforcing these federal regulations; you could not
delegate that to anybody; you let the supervisor tell you
what to do?
A. I guess I don't have-- full authorization with
. what. happens to the specimen; I guess I was wrong.
Q.
so
you would have the supervisor interpret the
regulations?
A. I would tell them if I saw something that went
wrong. I would explain what went wrong; it was up to the
supervisor.
Q. If he told you ship the sample out, you would
do that?
28
A. Yes.
q. Even if you--
A. I'm not sure. I guess it would depend on the
violation. .
Q. some'violations are okay and some violations
are not okay? '
A. I really don't know. I mean, basically my job
was to supervise, to hake sure that they did not tamper
with the urine. If that did
happen, I
would contact
their supervisor.
It is clear that him. Guelbenzu was only aware of half of
the regulations that protects the Conpany; thsre is no
evidence that he was aware of the regulations which protects
the donor:
Q. I understand the function in terms of
tampering, but don't you have another purpose there in
terns of making sure the chain of custody is protected or
don't you know?
A. From what I know is that I .must supervise the
test to go accordingly.
Q. Who do these regulations protect; do they
protect the employer or do they protect the employee?
A. I'm not sure. I don't fully understand what
you're asking.
Besides allowing another individual to enter the site
during a collection, leaving the site for no good reason, and
leaving the door open to air-out the room, the record
reflects a picture of Mr. Guelbenzu following instructions,
writing in the affidavit what he was supposed to write, and
rejecting or not rejecting a specimen according to what a
supervisor may have been telling him. Contrary to the
conclusion of Dr. Brawley, this Board cannot find that Mr.
Guelbenzu was "very precise and very professional" and that
his'story should be credited over Grievant's. 1
1. The Board notes that the DOT Drug Regulation Seminar
1990 handbook addresses when an MRO may negate the statements
of an employee vis-a-vis the collector:
29
The record also indicates that Grievant, contrary to DoT
regulations, was reroved fro:a service prior to Dr. Brawley
completing the verification process:
Q. [By Nr. Seham] : Is it not true- that
nr.
Santagada was removed from service prior to the
completion of the verification process?
It is also of. note that Grievant was never provided
written instructions during hi3
collection process
. (cf.
Union Exh. 6). While both considerations are not dispositive
of this grievance, not adhering to the regllations does net
help the Ccnp-any's case.
Finally there is the natter of Hr. Zell's representations
that the Grievant's test was going to be thro.n out. The
Company. asserts that it was mislead by the Grievant and this
was the basis for raking the statement to Grievant's Union
representatives. The Union asserts that the company was not
mislead and that this is clear from the testimony of the
Company's own witness.
As pointed out by the Union, the Grievant never spoke to
the company prior to its
decision to
cancel the test.
Specifically, neither Lee Harris nor Bob Zell had any contact
'with. Enzo Santagada prior to the cancellation of the test.
As Mr. Lee. Harris testified, it was Mr. Brennen who spoke to
Harris who, in turn,, spoke to Zell. Mr. Harris testified
that this information was the basis for Mr. Zell's decision:
(continued)
The MRO must know precisely how these steps are
carried out. Deviance from accepted procedures may lead
.the MRO to negate apparently positive results, while
knowledge' that prescribed procedures were carefully
followed permits' the HUt0 to discount statements from a
covered employee that a collection site person or
laboratory adulterated the employee's sample. (Union
Exh. 8 at 5).
Aside from Dr. Brawley's lack of knowledge of the
regulations, it is difficult, if not impossible, to credit
the collector's story in view of Guelbenzu's admitted
violations of the regulations.
30
Q. [ By Kr. F:elly] : Did you have any direct
contact with Enzo on that day?"
A. (By 1'r. Harris] : No.
Q. Did Mr. Brennan give you any specifics about
the problems or.concerns that I:r. Santagada had with the
test?
A. That Enzo had trouble providing a sample is
what I-like had told re. He left the room to get eater and
Enzo felt that somebody had gone into tha room and
contaminated his sample.
Q.. Did he provide any more detail than that?
A. No, that's as best I can remember, that's it.
Q. Based on that conversation, what did you do?
A. I called employee relations looking for zone
guidance.
' Q. Who in particular did you call?
Q. what did you do when you contacted Mr. Zell?
A. I told Bob the same story Mike told me. We
talked for a few minutes. Bob felt a little uneasy about
what I was telling him, and he said he was going to
contact headquarters and ask theiropinion.
Q. Did Mr. Zell get back with you?
A. Yes, Mr. Zell got back with me, and he
' informed me that I could tell Mike Brennen.who could tell
Enzo that the test would be null and void, and his name
would be put back in for random drug testing. (R. 113-
. 114). '
- .In summary, Harris stated that Mr. Santagada had trouble
providing _a sample. Neither the Company nor the Union,
contest this. Second, Harris was told that Enzo left the
room to get water. Third, Harris was told that Grievant felt
that someone had tampered with his specimen. Astatement
concerning the Grievant's feelings could not be considered a
misrepresentation of fact. Moreover, the company could not
and did not rely on this "feeling." The fact that they did
not is brought home by the testimony of Mr. Harris:
31
Q. (By I-:r. Sehan) : During your conversation with
Mike Brennan, he told you that Enzo Santagada felt that
someone had contaminated his sawple, is that correct?
A. [Harris] : The best I can rene,ber from the
conversation
we
had, yes, the first time I talked to Mike
Brennen.
"Did he tell you the reasons why* Enzo felt
that %,ay?
A. The reasons why--be more specific.
Q.. Did he report to you that Enzo had seen.
someone directly contaminating his specimen?
Q. So, it eras more in the nature of a suspicion
that Enzo had?
A. That's -what Mike led me to believe. (R.
116).
The testimony of the company's own witness, Mr. Harris,
bears out that the company's decision to cancel the test was
based on factual information from the Union that was not only
consistent with Guelbenzu's version of events, but actually
omitted some of the more egregious regulatory violations that
-Mr. Guelbenzu has admitted to. The Board concludes that the
company's only reason for failing to honor this commitment
has nothing to do with misrepresentations made by the Union
or the Grievant.
What resulted was that the Grievant relied on this
commitment in cancelling a scheduled test at Eagle Forensic
Laboratories which, unlike the Harris Lab used by the
Company, retains its NIDA certification. Dr. Brawley
testified that the cocaine metabolite stays in the body for
three to five days. But for the Company's promise, Mr.
Santagada would have been tested at a NIDA certified lab less
than'24 hours after his first test. A negative result from
that laboratory would have been very strong evidence that he
had no cocaine in his system hours earlier. Is is not, as
pointed out by the Company, dispositive of the matter, but it
would have helped the Grievant's case who, after all, should
be entitled to a test consistent with the regulations.
conclusion
If this Board were convinced in any way that the urine of
Enzo Santagada tested positive for cocaine, consistent with
32
prior Board precedent his termination would be sustained in a
New fork minute. The problem in this case is that the Board
cannot conclude whose urine tested positive in view of the
many infirmities in the collectin process ante the cuestions
regarding' the certification of the lab. Furthermore,
tracking the testimony of Dr. Brawley, as well as the DOT
regulations, this grievance must be sustained in view of the
Board's
conclusion that
the urine sample clearly was the
result of two separate voids. The Board finds the Grievant's
story credible and consistent with the Company's time fra__a
regarding the collection procedure. Mr. Gualbenzu's
testimony was full of inconsistencies and, more 9.rportant,.it
cannot be squared with the tins frame involved in this case.
Clear and sir.ple, :r. Gualbe-nzu, who (to the Cor:,:;any's
credit) is not an employee of American Airlines (he waa,
after all, a subcontractor of a subcontractor), did not
maintain full control over the collection process from start
to finish.
For the record, the Board is not deciding that every
violation of a DOT regulation must result in the test being
thrown out. Further, the Board sees no utility in addressing
every argument by both management and the Grievant regarding
this case. Credibility is not an all or nothing proposition
and while the Board is ruling for the Grievant, it agrees
`with the company that there are some facets of this case that
' raise real concern, especially from an employee in a safety
sensitive position. Given the overall evidence record,
however, the Board is left with little choice but to order
the Grievant reinstated with backpay at his straight-time
2. While the lab was certified at the tine of the chemical
analysis, one
unanswered question
is what the lab did during
a six-month window to lose its certification. The Board was
only told that the loss of certification involved "security"
issues, but there is little evidence along these lines. Did
the security problems involve access to samples? Did it
involve mixup of samples? The loss of certification is just
one additional aspect in this case that does not help the
Company's case. .
3. A major concern, noted by both parties during a January
2, 1992 Executive Session, is a urine sample, identified by
the lab as'Grievant's, did test positive. Accordingly, as
part of this award both parties agreed that the company, in
addition to random testing, may test the Grievant at its
discretion for one year.
33
rate; less interim earnings by the Grievant. The Board is
denying the Union's claim for other costs and expenses
including the Grievant's claim for interest. tIo prior system
board opinion supports
such
an award and this Board is not
prepared to exercise its writ like a circuit
rider--dispensing industrial justica pursuant to its own
whim.
VI. AWARD
The grievance is sustained. The Grievant is ordered
reinstated to his former position with baekpay at
his
straight-time rate, less interim earnings. All other claims
for monetary relief are denied.
7
Paul Baez Jaci: Bater.,zn
company Board Member Union Board Member
(concur) (concur)
1
I
1\
ff
Marvin-Hill, Jr.
chairman, American irlines -- TS?LJ
Miami Area Board of Adjustment
. Dated this . day
of
~ar*a1~f ~, 1992.
34