Arbitrator upholds company’s decision
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, the conductor worked on an overnight train from Smiths Falls, Ontario, to Montreal, arriving in the morning. The crew — 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, 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 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 sat in the front of the truck and the conductor got in the back. The engineer was yelling and the trainmaster smelled alcohol on his breath. He called a superintendent.
The engineer denied drinking but was told substance testing was going to be arranged. The conductor spoke with two other crew members 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. 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. But the superintendent did not want to delay the testing as it could affect the results.
When the testing agent arrived, the engineer 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 — it would be treated the same as a positive test, which would result in his removal from service and an investigation, with possible discipline up to and including dismissal. The conductor once again refused and was sent home — CPR later dismissed him from employment.
The arbitrator found CPR had reasonable grounds to test the conductor. Though his symptoms could have been the result of tiredness, both the trainmaster and the superintendent made independent assessments and 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, 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, said the arbitrator. CPR’s testing policy stated the 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.
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, said the arbitrator. Since he was in a safety-sensitive position, use of alcohol was a serious offence and CPR needed a strong deterrent for such behaviour.
"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.
See Canadian Pacific Railway and Teamsters Canada Rail Conference (Flinn), Re, 2014 Carswell Nat 4752 (Can. Railway Office of Arb. & Dispute Resolution).
