Worker denied consuming alcohol but refused test; refusal treated same as positive test under policy
An arbitrator has upheld a railway conductor’s termination for refusing to submit to an alcohol test.
The employee was a conductor for Canadian Pacific Railway (CPR), hired in 1999. On Dec. 24, 2013, conductor worked on an overnight train from Smiths Falls, Ont., to Montreal, arriving in the morning. The crew on the train – consisting of the conductor and an engineer – was scheduled to finish their assignment at a hotel and head back to Smiths Falls by taxi in the afternoon.
Shortly before the crew was scheduled to leave for Smiths Falls, they were asked to operate another train back instead of taking the taxi. When the taxi arrived, they informed the driver they would only be going to the train nearby instead of the longer trip – and larger fare – to Smiths Falls, and the driver became aggressive, raising his voice and swearing. The employee and his crewmate, the engineer, got out of the taxi and the engineer called a trainmaster to take them to the train.
When the trainmaster arrived, the engineer got in the front of his truck and the conductor got in the back. The engineer was yelling and the trainmaster smelled alcohol on his breath, so he called a superintendent.
The engineer denied drinking but he was told substance testing was going to be arranged. The conductor spoke with two other crewmembers who were going back to Smiths Falls and decided to ask the trainmaster if he could go back with them. However, the trainmaster smelled alcohol on the conductor’s breath as well and reported this to the superintendent, who was on his way by this time.
When the superintendent arrived, the conductor denied drinking, but the superintendent observed him speaking slowly and deliberately. The conductor also smiled and asked the superintendent if he had noticed his new safety glasses, which the superintendent thought was an odd way to greet him. The superintendent also observed the conductor’s eyes weren’t fully open and he was swaying slightly. He asked the conductor to come to his vehicle to talk.
In the vehicle, the superintendent smelled “a stench of alcohol” and the conductor seemed to be trying to keep a distance. The conductor was also slow to answer questions.’
The superintendent decided to order a substance test for the conductor as well, though both he and the engineer continued to deny consuming any alcohol. The other crew and the hotel’s assistant manager were asked if they could smell alcohol and they confirmed they could not.
The conductor said he would not submit to testing as he had not been drinking, nor had he been involved in any accident or altercation. He was given phone numbers for union representatives but could not reach any of them. The superintendent, however, did not want to delay the testing as that could affect the results.
When the testing agent arrived, the engineer first refused but then calmed down and agreed to testing. He registered a blood alcohol level on two tests that was above the limit for intoxication.
The superintendent informed the conductor of the implications of refusing testing, which were that a refusal would be treated the same as a positive test and would result in his removal from service and an investigation, with possible discipline up to and including dismissal. The conductor once again refused and he was sent home along with his crewmate. CPR later terminated his employment.
The arbitrator found CPR had reasonable grounds to test the conductor. Though the conductor’s droopy eyes and slower speech could have been the result of tiredness, both the trainmaster and the superintendent made independent assessments of him and they came to the conclusion he had consumed alcohol. The assessments were made separately from the engineer and not as “an afterthought” related to the situation with the taxi driver, which the union suggested in its grievance on behalf of the conductor.
The arbitrator found the superintendent’s time in the closed vehicle with the conductor in which he smelled alcohol and observed behaviour consistent with someone trying to conceal he had consumed alcohol provided enough evidence to warrant testing. The arbitrator also found the conductor’s explanation that he was “very relaxed" wasn’t credible in the circumstances. The fact the others couldn’t smell alcohol didn’t change the observations of the superintendent and the trainmaster, said the arbitrator.
Though the conductor was unable to contact union representatives, the arbitrator found he was given reasonable opportunity to do so, as the testing agent arrived about 15 minutes after the conductor was first given phone numbers for union representatives and testing of the engineer took about 30 minutes. CPR’s testing policy stated that testing must be done as soon as possible after the decision to test is made.
“I am inclined to agree with the company that it was not unreasonable to refuse to wait any longer in the hopes that the (conductor’s) calls would be imminently returned,” said the arbitrator.
The arbitrator found CPR was entitled to draw a negative inference from the conductor’s refusal to testing, as was made clear to him and was stated in the policy. Since he was in a safety sensitive position, use of alcohol was a serious offence and CPR needed a strong deterrent for such behaviour, said the arbitrator.
“By refusing to undergo testing in the circumstances of this case, only one reasonable conclusion can be drawn: the (conductor) was not being truthful in his denial of any involvement in drinking at the time he was confronted by (the trainmaster) in the hotel lobby and by (the superintendent) in his truck,” said the arbitrator.
