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0 A federal labour arbitrator has given Air Canada the green light to test a strand of a flight attendant’s hair for drugs after two of the man’s housemates — and fellow employees — claimed he was smoking a bong and making jokes about hijacking.
According to a decision posted last week, the flight attendant — known as CB — was expelled from a home housing 14 Air Canada employees, following a group meeting prompted by his behaviour.
Two of CB’s fellow cabin crew members wrote reports which made their way to a Vancouver-based service director manager for Air Canada — sparking a request for a strand of CB’s hair along with a battle between the airline and the Canadian Union of Public Employees.
The decision provides a window into the lives and responsibilities of the cabin crew members tasked with looking after the safety of passengers on the country’s largest airline.
It also highlights the question of hair strand testing — which the union was already in the process of grieving when CB’s situation arose.
‘He referred to hijacking a plane’
Arbitrator William Kaplan was called in after CB had already volunteered a strand of his hair on April 18 for “reasonable cause substance testing.”
The union filed what Kaplan called an “extraordinary” motion to prohibit Air Canada from relying on any information revealed by the test until CB got a chance to challenge the request.
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CB booked off sick in March and was slated to return to work in mid-April.
But his housemates gathered on March 29, voting to kick him out of the shared home as of May 1 and encouraging CB to seek help through the company’s employee assistance program.
Unbeknownst to the union or CB, two of them also wrote letters to a supervisor.
“[He] seemed dazed every other day and appeared to be under the influence of substances,'” Kaplan wrote, describing one complaint.
“According to this crew member, [CB] made some disturbing reference to hijacking a plane (albeit ‘with the intention of dark humour, but it still raised safety concerns’).”
Kaplan said the second crew member said CB owned a bong, was using it to smoke pot and was “reported to have said that if he was caught by the company — using marijuana — that he had other work options available (and he also referred to hijacking a plane, again ‘with dark humour’).”
No right to ‘control the lives’ of employees
Hair strand testing can detect substance use in the past three months — as opposed to saliva testing which can only determine very recent consumption and urine testing which can detect pot use in the last seven days.
The company claimed the hair testing was necessary because more than two weeks had passed between the day CB’s co-workers reported him and the day he was ordered in for screening.
The union claimed it was given no notice that Air Canada planned to initiate hair strand testing for suspected substance abuse, arguing the move was in violation of the rules governing the principles of collective agreements.
Kaplan said the union claimed hair strand testing was “an unacceptable intrusion” into CB’s personal life and that employees who are not on duty or subject to duty can’t be screened for substances unless random testing is part of a contract.
“Simply put, the company does not, union counsel argued, have any right to control the lives of its employees when they are not on duty or subject to duty,” Kaplan wrote.
By contrast, Air Canada argued that the company did not normally request hair strand tests: “this case was an exception, and one fully justified by the facts.”
“The risk of returning an employee to work in circumstances like those presented here far outweighed any of the identified interests of either the union or the grievor,” Kaplan wrote, stating the company’s position.
“Those results needed to be known and, if they indicated substance use, the company needed to take action.”
‘An entirely legitimate safety interest’
Kaplan said the union was right to safeguard the privacy interests of its members, but sided with Air Canada.
The arbitrator said the company had “an entirely legitimate safety interest to protect.”
“Indeed, in the face of those reports from the grievor’s colleagues and housemates, it would have been derelict of the company to ignore the information it had received,” Kaplan wrote.
He said the company faced a “quandary” because only hair strand testing would have revealed whether CB was using drugs at the time when the reports against him were filed — two weeks before he was screened.
Kaplan pointed out that Air Canada’s policies prohibit cabin crew from using illegal drugs and marijuana “at all times, even when not on duty or not in the workplace” except when prescribed as medication.
He noted that the union can still fight management’s handling of the case and any associated discipline, but said in the meantime “the hair strand test results will yield useful information.”
In a statement, Air Canada said “we are pleased this decision confirms that safety is essential in our business.”
