Tuesday 3 February 2015


Normally when there’s a dispute I have to scrabble around online trying to get information but while not many hours of work have been lost so far over the sacking of Alex McGuigan hundreds of trees have been sacrificed as we’ve been deluged with memos from both sides and here’s what I’ve managed to glean from them.

Let’s start with basics, random D&A testing happens all the time, AMcG wasn’t singled out because they thought he was drunk, it was just a regular thing, normally when someone fails a test they are sacked and nothing is ever heard.  LU’s drugs and alcohol policy states that a maximum of seven units can be consumed in the 24 hours before booking on for duty but none at all in the eight hours before.  AMcG has maintained that he’d stayed within LU’s limits, he was due to book on at 12:20, drank less than six units the previous evening and stopped well before the eight hour deadline making Nigel Holness’s claim that he’d admitted he’d been drinking before starting work deliberately misleading.

While it is true that certain types of diabetes can cause an excess of acetone which can give a false positive reading on old style semi-conductor breathalyzers the new fuel cell types are supposed to be immune from such problems and LU claims “the Lion Alcometer (breathalyser) we use in London Underground does not give false positive results“.  Having been the subject in a random D&A test last year I think I can identify the breathalyser used as the Lion Alcolmeter ® 400 – you’d think they could at least get the spelling right.  On Lion’s website the blurb tells us “the reading is very unlikely to be affected by anything in the subject’s breath other than alcohol” which isn’t quite as emphatic as LU’s claim.


RMT claims that the test was carried out by “an unsupervised trainee”; in reply LU states that while trainees may be present they are always accompanied by an experienced and qualified testing supervisor who will conduct any secondary tests.  It has been stated that AMcG failed two tests and LU confirms that If the first test fails then a second one will be automatically be taken.  If the test was carried out by an unsupervised trainee then clearly LU breached its own procedures and inexperience could have led to a mistake

The obvious problem with LU admitting that there might be the slightest possibility of the Lion 400 giving an inaccurate reading or that the staff might not be sufficiently trained to take the tests is that it puts an element of doubt on all the previous test that have led to staff being dismissed and where the unions didn’t make a fuss.  RMT ask why the urine sample wasn’t tested when the breathalyser result was questioned and why a medical review wasn’t held.  LU says that the urine sample doesn’t reflect the level of alcohol in the blood stream at the time of the test and that medical reviews are held after a positive drugs test, not a failed alcohol test.

A very noticeable point is that RMT has offered to call off strike action if management agree to reinstate AMcG should his dismissal be deemed unfair by the Employment Tribunal but this was rejected and the obvious question is if LU are so sure of their case why would they not agree to this?  The implication is that there’s something they’re not telling us and sadly they have form, in the past evidence has emerged that proved that management weren’t telling the whole story.  At one tribunal a manager was described as “an unreliable witness”, as close as you can get in legal terms to saying someone is telling porkies.


Of course it could be that AMcG is the one not telling the truth but the strength of support from the other TOps, both RMT and ASLEF, in the limited strike at Morden depot last month suggests that his colleagues believe him.  Depots are small places, there’s plenty of gossip and if anyone there thought that AMcG was a boozer then when he failed the test there would have been a general shrugging of shoulders.  The decision to ballot all Lines rather than just the Northern came after Victoria and Piccadilly Line staff at Finsbury Park branch backed a motion to spread the dispute so rather than a strike imposed from the union’s leadership this seems to be coming from the members.


In the end it comes down to who to believe, who to trust.  While LU’s statements are accepted by the media, the public and the politicians sadly they have little credibility with their employees.  The past has taught us that management will stick to their story no matter if it’s true or not, they simply refuse to compromise even when faced with inevitable defeat.  If it does come to strike action then even though ASLEF are not involved and won’t be balloted I will not be crossing the picket line

21 comments:

  1. Forgive staying anonymous for this one, but LU has always run scared of Tribunals - it fights like a wounded bull to make someone disciplined to stay that way, but when it (so often...) looks like it's on a loser, it bludgeons the victim's lawyers into accepting a settlement on the basis of 50% contributory negligence, regardless of what the victim might think.

    I type this from bitter, bitter LU experience. While I would never recommend anyone to go through the Tribunal process as just preparing for it is possibly the most stressful thing you can ever do (makes house-moves look like a tea party), to be forced into an unwelcome settlement at half of what you have a real claim to, is not 'compensation'.

    Compensation does not compensate - the guilty get away with it, the innocent (or damn nearly, but rarely as blameworthy as the employer makes out) still suffer, and the public pays (customers' money ultimately funds the pay-outs, not the company). 'Unreliable witness' is far too common a position in many Tribunal events, but 'they' still walk away spotless, mostly. The pain never disappears, it throbs quietly in the background and attacks you when you're not expecting it. End of rant.

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  2. Out of interest can an employee be punished for not crossing the picket line of another union?

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    1. Short answer-no!
      Strictly speaking employer doesn't know which union you belong to,but may if pay subs via payroll (and many drivers are joint members RMT/ASLEF). They have in past put letters out 'disappointed in you...veiled threat'.,
      Can always join other union for period of any action too.
      Hope that helps!

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    2. Much obliged, I'd always wondered.

      Also regarding the comment below, I agree the email we received last week that said the driver in question had admitted drinking before his shift did imply that he had had a drink "just" before his shift not the previous day. If this was not the case then it's very misleading on the part of management

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  3. Shrugged - well done, very balanced summing up. Whole thing is mess, but hard to believe RMT stick to guns so much if have nothing. Agree the misinformation/speculation is bad for all; also what you hinted at-LUL terrified of can of worms.
    The way LUL bulletin was worded to suggest he had downed a few just before setting off for work was reprehensible; but also the likelihood of such a high reading due to diabetes seems bizarre.
    I won't cross picket line, but how many will there be? This issue affects all grades, so why has this 'all grades union' only balloted drivers?

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    1. The wider issue may affect all grades but the individual case concerns a train operator, if RMT tried to ballot its other members LU would probably have legal grounds for challenging any industrial action. There's also the question of whether station staff would be willing to go on strike after last year.

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  4. Its worth noting too that Peter Hendy has already apologised for making a factually incorrect statement on LBC. He claimed Alex had been 'drinking on duty' which of course became headlines across the Tory press.

    He later wrote to the RMT to apologise for this mistake, though this was overlooked by the papers .

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  5. We as train Operators find ourselves in these positions more and more recently: Why?................there is a general cowardice amongst our Aslef reps and leadership, if there is no money in it, they don't want to know. There is more to life than money as the Boxing day settlement has proven.Yet we are still talking about picket lines, when the lines should be in our heads, just like the RMT members who always seems to respect our lines.

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    1. Utter bullshit. RMT TOps worked every Boxing Day we were out, they stayed away when the Central Line went on strike last year because the issue effected them directly but plenty of them crossed the lines or joined ALSEF while the "ticket office" strikes were on. If you are so disappointed with ASLEF then you can always join RMT.

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    2. Wow, a fightback, a refreshing change, but save it for the management.

      The plain and simple truth is our reps encourage our members to cross RMT lines yet RMT reps do the exact opposite. On the whole the RMT members won't cross and our membership will. Your assertion that RMT members worked every BD is false. More ASLEF crossed our non existent lines at our Depot than those of the RMT. This wanton scabbery was an increase on the year before. Our glorious leadership saw the weakness and sold several long held conditions to get an agreement that sold out every Driver with little or no service. The new BD agreement has now fallen flat on its face and we are back at square 1 having wasted a great opportunity to have a choice of cash or more time off. Its amazing to see the lack of reps working BD , the same reps who sold this deal in the first place.

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    3. Not sure what depot your at but I saw that too.

      The BD agreement is dead as it was.so weak the management drove a horse and coaches through it. They got an enhanced service and longer turns. What a joke.

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    4. "Its amazing to see the lack of reps working BD , the same reps who sold this deal in the first place."

      The BD deal was done by functional council, not local reps. Most RMT reps got BD off too because - surprise, surprise - most of them have been here for donkeys so they were senior enough to not get hit. At my depot our reps were grinning from ear to ear when we went out last year because not one ASLEF member crossed our line, when RMT went out for station staff there were loads of them booked on. I've never heard any reps, ASLEF, RMT or TSSA, encourage members to cross a picket line, maybe we're a bit more civilised on the Central but if you're still that disappointed with ASLEF and RMT are so wonderful here's a link

      https://membership.rmt.org.uk/services/p_wwv_jo_person_details?session_id=DECE1B950CC73C05EA41129367284E

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    5. I wish I had not worked on Boxing day in 2011 (I am a RMT member) as this was the last one that my Wife saw, I did not know of course at the time it was going to be her last Christmas though. It is true that RMT Driver members worked during the strikes last year and then left the RMT.

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  6. As a member of ASLEF for eighteen years and a GMB member for seven years before that I have never crossed a picket line (of any union) nor do I ever intend to. I agree that the RMT should have balloted all grades because it would have probably been more effective anyway. However this time it is obvious that all of us are potentially in the firing line, I'm certainly no slim jim so I could have diabetes and not know yet, even though I haven't drank alcohol in 15 years I could fail a test! Also its very important and worrying that LU didn't carry out their own procedure, that alone is enough to make me come out in support of this action if it goes ahead (which is by no means certain from what I hear locally.....)

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    1. Not wishing to sound repetitive but had RMT balloted all grades in what is a train side dispute LUL could well have taken this to the courts and won an injunction against strike action. Had TSSA or ASLEF joined in they could well have faced similar court action. We have to play within the rules

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  7. I wondered about the tribunal situation - google doesn't give away much but I did find this.... Between 1 December 2008 and 1 December 2010, LUL received 241 Employment Tribunal claims.Of those 241 claims, only 22 have concluded in an Employment Tribunal,with 18 found in favour of LUL and 4 found in favour of the claimant. Additionally, as a result of LUL's robust strategy to proactively manage Employment Tribunal cases, 71 of the 241 cases have either been withdrawn by the claimants or struck out by the Employment Tribunal. Which may suggest your perception isn't a reality when it comes to ET's.

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    1. Perhaps you might want to read another Anonymous post from 15:27 3 Feb where they suggests that LUL have pressuiseide claimant into settlement.

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  8. More details from the manufacturer can be found here:
    http://www.lionlaboratories.com/wp-content/uploads/lion_alcolmeter_SD-400-with_printer.pdf

    From Appendix 2: "unaffected by acetone".

    Which is actually the same as LU's claims, I think? I expect they have the "very unlikely" disclaimer because they cannot positively rule out any sort of false positive, but they are quite categorical about acetone.

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    1. Ooops, that link is for a slightly different model. But the manufacturer's FAQ is very clear on the subject of Acetone:
      http://www.lionlaboratories.com/faq/lion-breath-analysis-instruments/

      "all Lion instruments use analytical technology that is unaffected by breath acetone, so that the reading obtained will be due to alcohol only."

      See the question about diabetic people for that passage. It seems that LU are indeed saying the exact same thing as the manufacturer, when it comes to the equipment in use: at least, if you are correct about the make.

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    2. Lion breathalysers may well be able to distinguish between acetone and alcohol. The difficulty arises when it comes to distinguishing between different types of alcohol. The alcohol in drink is ethanol. However, if certain circumstances the body can produce isopropanol - also an alcohol and this can give rise to a false reading. This applies to all handheld breathalysers using fuel cell technology and is why the police use a roadside test ONLY AS A GUIDE to a possible offence. The true, accurate readings of blood alcohol content can only be obtained from an Evidential Breath Tester costing several thousand pounds or from blood/urine samples.
      One may want to look here to see what research has thrown up about the claims made by breathalyser manufacturers -
      http://www.lifeloc.fr/download/Evaluation%20of%20Consumer%20Breath%20Alcohol%20Analyzers.pdf

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  9. It does not matter which union you belong to , if you drink be very aware of any handheld testing . Also there are drivers in both unions who will do any , say anything , believe anything just not to take industrial action . Also where you have weak reps , get rid of them , we as a grade can not afford to have week leadership .

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