A federal arbitrator recently ruled that a train engineer who was found to have had cannabis in his system did not need to face penalties because he was not impaired.
The locomotive engineer from Saskatchewan tested positive for THC in a urinalysis conducted on March 30, 2022, after an incident where the engineer had failed to secure his train.
Although an oral swab and breathalyser were both negative, urinalysis showed that he was positive for cannabis metabolites (53 ng/ml).
The man’s union brought the grievance to arbitration, arguing that since the man was not found to have been impaired, a penalty of a thirty-day suspension and six months of random on-the-job testing was uncalled for.
The company, Canadian Pacific Kansas City, argued that the random testing is appropriate for safety reasons, given the dangerous nature of the work, even if no discipline is imposed.
The man told company investigators at the time of testing that he had consumed a cannabis candy some 16.5 hours before his tour of duty.
In his analysis, the arbitrator noted that urinalysis has “repeatedly been found by arbitrators to be incapable of assessing when or in what quantity drugs were consumed, and whether the employee was impaired.” Because of this and because the engineer, who had 28 years of seniority at the time of the incident, showed no signs of impairment, the arbitrator found him not to have been impaired.
As such, in a ruling posted on September 16, federal arbitrator James Cameron ruled that the thirty-day suspension be struck down, with the employee compensated for lost time. He also found that the six months of random testing was not warranted since he was not impaired and was, therefore, not in violation of company policy.
Another ruling, posted on the same day by the same arbitrator, ruled that a subsequent termination of the same employee who had been found to have alcohol in his system following testing conducted under the initial six-month random sampling penalty was uncalled for.
The locomotive Engineer, John Downey of Sutherland, SK, was dismissed from service by Canadian Pacific Kansas City on January 28, 2023, after testing positive for alcohol on December 5, 2022.
The man’s union argued that he was not actually impaired at the time of testing, nor had he intentionally violated company policy by consuming alcohol nearly a full day prior to his shift.
Downy told company investigators at the time of his random sampling that he had consumed alcohol around 20 hours before the start of his next shift, accounting for the breath alcohol content screening at 0.051% Blood Alcohol Content and subsequent lab confirmation positive at 0.046% BAC.
Company policy based on his previous suspension and six months of random testing was that Downy could not consume any intoxicating substances during the six-month period. He and his union contend that Downy thought the only substance covered in this ban was cannabis.
The company argued that Downy was subject to duty in the day prior to the shift where he tested positive for alcohol because he was on call. The union successfully argued that he was not subject to duty at the time and, therefore, should have his position reinstated and made whole for the loss of wages and benefits, minus mitigation.
