for being in violation of Industrial Relations order X85-1,("851") which concerns use of, and testing for, intoxicants and/or controlled substances.
prior non-related discharge case involving this Claimant was reviewed by this Special Board of Adjustment, following which the Board suggested the Authority recall Claimant from his discharge. When the Claimant was notified of his recall, he visited his physician on August 28, 1987, and had administered a body fluids test. This test proved negative.
On August 31, 1987, Claimant was given a return to work physical by the Carrier's medical department. This examination' also included a body fluids test for drugs/alcohol screening. After the specimens were collected from the Claimant on August 31, he was immediately returned to service.
The Authority had Claimant's specimen of August 31 tested by SmithKline Bic Science Laboratory. SmithKline performed an initial screening of the specimen, which detected cocaine metabolite and cannabinoids. This screening was followed up with a confirming test of Gas Chromatography/Mass Spectrometry. SmithKline reported thdpositive test results to the Authority by document dated September 2, 1987. On September 3, 1987, the Authority terminated Claimant for violation of Industrial Relations Order 85-1. A subsequent retest of the Claimant's specimen, taken August 28, 1987, also proved positive, although the organization maintains those test results also are not reliable.
Order 85-1, unilaterally promulgated by the Employer on September 20, 1985, states in relevant part:
The Authority contends that the Claimant was properly discharged pursuant to 85-1, as he had a previous history of substance abuse. The organization raises numerous arguments on behalf of the Claimant, including the alleged impropriety of 851.
In Award No. 17, affso issued this day, the Board set forth guidelines concerning how it will consider certain cases arising under 85-1. Applying those principles to the facts of this case, the Board finds that the claim must be sustained in part.
The evidence indicates that prior to Claimant's discharge now at issue, he had a verified history of controlled substance abuse and had undergone rehabilitative treatment as recently as the Spring of 1986. Shortly thereafter, Claimant was discharged for reasons unrelated to drug use and not reinstated until August, 1987. In these circumstances, the Authority had a proper
basis for requiring the Claimant to undergo a body fluids test upon his return to work on August 31, 1987, and the test results could be legitimately considered by the Authority. The Board is satisfied that the testing procedures used were adequate and that the results accurately showed that the Claimant had traces of a controlled substance within his system. There is no evidence, however, that the Claimant was under the influence of controlled substances while at work or reporting for work.
In these circumstances, the Board finds that the Authority could not properly discharge Claimant. The Authority could, however, properly remove the Claimant from work until such time as he underwent additional rehabilitation and tested negative, as the evidence establishes that the positive result of the test administered to the Claimant on August 31, 1987, was caused by his use of controlled substances rather than passive inhalation.
Accordingly, within 60 days of receipt of this decision, Claimant shall notify the Authority whether he will self refer to a proper rehabilitation program. If Claimant re-enters rehabilitation and successfully completes the program, the Authority shall reinstate him contingent upon his testing negative for a body fluids test administered at the time of his return to work physical.