CN Rail employee tests positive following earlier drug test refusal

Worker claims marijuana in cookies he consumed

A railway worker’s positive drug test when he was on a last-chance agreement was sufficient to warrant dismissal, an arbitrator ruled despite the worker’s claims he unknowingly ingested the drug.

The 50-year-old employee — referred to as “M.B.” by the arbitrator — worked with Canadian National Railway (CN) for 26 years. Like all CN employees, he was subject to CN’s drug and alcohol policy that required “biological testing for the presence of drugs and alcohol in the breath is conducted where reasonable cause exists to suspect alcohol or drug use or possession in violation of the policy, including after an accident or incident.” 

The decision on whether testing was warranted, was supposed to be made by a managerial or supervisory employee.

The policy stated that violation would “result in corrective action up to and including dismissal. Refusal to complete the testing process set out under this policy is considered a policy violation.”

In January 2015, M.B. refused to take a test following a train accident on the grounds that he wasn’t controlling the movement of the train. 
CN terminated his employment for violating the drug and alcohol policy, but the union negotiated a return to employment in July. 

As a condition of his reinstatement, M.B. signed a continuing-employment contract, which subjected him to frequent performance observations by his supervisor, required him to abstain from illicit drugs at all times, and subjected him to unannounced drug testing from time to time. 

The agreement stated that if M.B. didn’t fully comply with the policy, he would be discharged from employment and wouldn’t be eligible for reinstatement.

On Dec. 17, 2015, CN required M.B. to take a drug test. Two days later, the results came in and the worker tested positive for a low amount of marijuana. 

M.B. explained that he had received three dozen cookies from his wife in Jamaica for his birthday and had eaten several. 

He said if there was any marijuana in his system, it would be from the cookies. He denied taking any medical marijuana or similar medications.

CN held an investigation meeting on Jan. 1, 2016. M.B. confirmed his understanding of the continuing employment contract and the consequences of violating it. 

However, he disagreed with the test results “because I hadn’t taken any drugs.” 

M.B. then submitted the results of a second test he took on Dec. 23 that came back negative.

M.B. told CN that his wife threw him a birthday party and one of the guests brought cookies containing marijuana. He said he ate some of the cookies before bed on Dec. 15, though he had no idea they contained the drug. 

He only realized what happened after the positive test on Dec. 17.

M.B. gave a written statement to CN from a friend who was at the birthday party who claimed to have brought the cookies for private consumption and M.B. inadvertently ate some of them. 

The friend apologized to CN and M.B. in the statement for causing “damage to my friend’s reputation and lifestyle.”

M.B. went on to say he was angry and upset by what had happened and ingesting marijuana was “not my doing.” He insisted he didn’t use illicit drugs.

However, CN terminated M.B.’s employment for violating the drug and alcohol policy, as well as breaching the continuing-employment agreement.

An arbitrator from the Canadian Railway Office of Arbitration and Dispute Resolution found that a refusal to take a test was a breach of policy because such a refusal raises suspicion. A worker’s claim he avoids drugs is somewhat dampened by refusals to take tests, said the arbitrator.

Regardless, CN’s policy indicated that a positive drug test would be considered a violation. M.B. knew this because he had been terminated for a refusal before and signed an agreement recognizing the penalty of another violation when he was reinstated. He also confirmed this at the investigative meeting.

The arbitrator also considered the likelihood of whether M.B. knowingly consumed marijuana, as the test established that he did consume it. 

M.B.’s credibility came into question as the story he initially provided when the positive test came back and the one he told at the investigative meeting were different. He initially said his wife sent him cookies from Jamaica, and later said a friend brought them — even providing a letter from the friend. 

This inconsistency didn’t help M.B.’s cause, according to the arbitrator.

The arbitrator determined that M.B. violated the continuing-employment agreement and CN’s drug and alcohol policy. His long service with CN wasn’t enough to mitigate his misconduct, so the grievance was dismissed.

“The (worker) was reinstated before subject to strict conditions through the continuing employment agreement. He has been shown not to have complied with these conditions,” said the arbitrator. 

“This is a case where there is insufficient basis to alter the employer’s decision.”

For more information see:
• Canadian National Railway and Teamsters Canada Rail Conference (B. (M.)), Re, 2016 CarswellNat 6496 (Can. Railway Office of Arb. & Dispute Res.).

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