Update: April 12, 2017 Court Denies Injunction and forces issue back to arbitration where the Union’s challenge to the TTC’s policy has been in arbitration since March 8, 2011 before Arbitrator Maureen K. Saltman.”
The TTC’s workforce has a substance abuse problem that could put passengers and the public at serious risk if it’s not immediately addressed, according to a court document filed by the transit agency.
But a representative of the union that represents TTC workers calls the allegations of substance abuse “absolutely false.”
In a factum the TTC submitted ahead of a hearing this week on its proposed random drug and alcohol testing policy, the agency said that between October 2010 and December 2016 there were 291 documented incidents in which employees’ behaviour raised safety concerns. In almost half of those the TTC either suspected or confirmed that drug or alcohol use was a factor.
A transit agency investigator concluded there was a “culture of drug and alcohol use at the TTC” and reported 45 additional incidents of employees using or trafficking alcohol or drugs while at work, including marijuana, cocaine, heroin and prescription drugs such as OxyContin.
The agency said that the results of 11,000 drug and alcohol tests of its employees since 2010 “indicate that drug and alcohol use continues to be a significant problem for the TTC, a threat to its safe operation and to the safety of the public… Each day without random testing increases the risk of irreparable harm to employees, passengers, and the public.”
The TTC submitted the 130-page document in response to a notice filed by the transit agency’s union, Amalgamated Transit Union Local 113. The union, which represents over 10,000 transit workers, is seeking an injunction against the random drug testing policy that is slated to go into effect on March 1. A two-day hearing on the issue begins Tuesday at the Ontario Superior Court of Justice.
In an interview, Kevin Morton, the secretary-treasurer of Local 113, refuted the TTC’s depiction of endemic drug and alcohol use among its employees
“We have the same issues as any organization — be it the police, fire, newspapers — with regards to the normal distribution of people with alcohol or drug problems,” he said.
Morton said the union doesn’t oppose the TTC’s current substance abuse policies, which allow employees to be tested if there is “reasonable cause” to believe they were impaired during a significant work-related incident. Employees who are returning to work after violating the policy or undergoing addiction treatment are also subject to testing.
The new policy, which the TTC board first approved in 2011, would allow management to test employees at random, using a breathalyzer to detect alcohol or an oral swab for drug use. Workers in “safety-sensitive” positions including vehicle operators, maintenance workers and supervisors would be eligible for testing, as would some management and executives.
The union argues the policy would violate employees’ Charter right to be protected from unreasonable search and seizure. “We believe in incident-based testing. I shouldn’t have to prove that I am innocent of anything,” Morton said. “I should be able to go to work on the assumption that I’m honest and dependable and clean.”
According to the TTC’s factum, between October 2010 and December 2016 there were 70 instances in which employees either tested positive for drug or alcohol use or refused to be tested following at-work incidents or when management believed there was reasonable cause to suspect impairment.
There were a further 46 incidents in which employees refused to be tested when they returned to work after violating the drug and alcohol policy or undergoing addiction treatment.
The factum also states that at least 15 transit operators “that the TTC is aware of” were charged by police with impaired driving while at the wheel of a private vehicle.
Although prospective employees are told that drug and alcohol testing is part of the job application process, 187 applicants to safety-sensitive positions returned positive drug tests.
Agency spokesperson Brad Ross said that despite the statistics, transit riders shouldn’t be afraid to ride the TTC.
“The TTC is safe, of course,” he said in an email. But the new drug policy would ensure it was “even safer.”
“If (the TTC) is aware of incidents of impairment in the workplace, it has a duty to act to protect its employees and the public, which it has done here.”
In messages to the public, the transit agency normally stresses how safe it is, and it’s unusual for it to claim in a public document that it has a potentially hazardous substance abuse problem among employees.
But it may have had little choice. A 2013 Supreme Court decision prohibited random testing unless employers could prove there was an existing drug or alcohol problem in the workplace.
This week’s legal showdown comes at a time when the leadership of the TTC union has been thrown into disarray by an affiliation dispute that saw the executive board pass a no-confidence vote against Local 113 president Bob Kinnear last week.
Morton, the local’s secretary-treasurer, said the schism hadn’t affected the union’s ability to fight the policy.
The random drug testing issue has been tied up in labour arbitration for years. Citing the slow movement of that process, the TTC decided last March to implement the policy without waiting for the arbitration outcome.