BOARD OF APPEALS
DECISION
DECISION NO: 1461-BH-91
DATE: Nov. 19, 1991 |
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| CLAIMANT: Carroll Thompson |
APPEAL NO.: 9108548 |
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| EMPLOYER: Washington Metro Area Transit Authority |
L.O. NO: 7 |
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APPELLANT: Employer |
Issue: Whether the claimant was discharged for gross misconduct
or misconduct, connected with his work, within the meaning
of Section 8-1002 or 8-1003 of the Labor and Employment Article.
- NOTICE OF RIGHT OF APPEAL TO COURT -
YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH
THE LAWS OF MERYLAND. THE APPEAL MAY BE TAKEN IN PERSON
OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE
CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT
COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.
THE PERIOD FOR FILING AN APPEAL EXPIRES December 19, 1991.
APPEARANCES
For the Claimant:
Claimant not present |
For the Employer:
Bruce Heppen, Esq.
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EVALUATION OF THE EVIDENCE
The Board of Appeals has considered all of the evidence presented,
including the testimony offered at the hearings. The Board
has also considered all of the documentary evidence introduced
in this case, as well as the Department of Economic and
Employment Development's documents in the appeal file.
At the hearing
before the Board of Appeals, the employer introduced two
affidavits from employees with knowledge about the union
contract and their Employee Assistance Program, and also
offered a copy of the Washington Metropolitan Area Transit
Authority Interstate Compact.
One of the
issues in this case was whether the employer, a Washington
company that has offices in Maryland, is bound by Maryland
law, specifically Section 17-214.1 of the Maryland Health
General Article dealing with an employer's duties when
a drug test is given. The employer has presented sufficient
evidence to show that it is not covered by the Maryland
Health General Article.
FINDINGS OF FACTS
The claimant
was employed by the Washington Metro Area Transit Authority
for approximately ten years as a mechanic. He was discharged
for violating the employer's substance abuse policy. In
June, 1989, the claimant was randomly tested for drugs,
in accord with the union agreement, and was found to be
positive for cocaine. He was not fired at that time, but
was required to enroll in an Employee Assistance Program,
since it was his first offense. One of the conditions
of his remaining employed was that he not test positive
on any further drug tests.
On or about
February 16, 1990, the claimant was screened during a
six-month random testing and again was found positive
for opiates and cocaine metabolizes. As a result of failing
this test, he was discharged. At the time he was discharged,
the claimant knew that he was subject to random tests
and knew that one of the conditions of his remaining employed
was that he not test positive for any drugs.
CONCLUSIONS OF LAW
The Board concludes that the claimant was discharged for gross misconduct,
connected with his work, within the meaning of Section
8-1002 of the Labor and Employment Article. The claimant's
positive results from the drug test, especially after
having known that the only way for him to keep this job
was to stay drug free, is a deliberate and willful disregard
of standards of behavior that his employer had a right
to expect, showing a gross indifference to the employer's interest.
The Washington
Metropolitan Area Transit Authority Compact is an agreement
between Virginia, Maryland and the District of Columbia.
Under its terms, this employer is free to:
Create and abolish offices, employments and positions (other
than those specifically provided for herein) as
it deems necessary for the purposes of this authority,
and fix and provide for the qualification, appointment,
removal, term, tenure, compensation, pension and
retirement rights of officers and employees without
regard to the laws of any of the signatories. (See
Employer's Exhibit #B-3.) |
Therefore, although the employer did not follow the requirement of
the Maryland Health General Article, it was not required
to and failure to do so does not invalidate its evidence
of the claimant's failure to pass the drug test.
DECISION
The claimant was discharged for gross misconduct, connected
with his work, within the meaning of Section 8-1002 of
the Labor and Employment Article. He is disqualified from
receiving benefits from the week beginning February 25,
1991 and until he earns at least ten times his weekly
benefit amount ($2,150), and thereafter becomes unemployed
through no fault of his own.
The decision of the Hearing Examiner is reversed.
Hazel A. Warnick, Associate Member
Donna P. Watts, Associate Member
HW:W
kbm
Date of Hearing: October 8, 1991
COPIES MAILED TO:
CLAIMANT
EMPLOYER
Bruce Heppen, Esq.
WMATA
UNEMPLOYMENT INSURANCE - COLLEGE PARK
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