BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Dwayne W. Rowe

There appeared on behalf of the Company:

Timothy S. Preston, Q.C.

And on behalf of the Union:

Mr. Murray Smith

A hearing in this matter was held at Whitehorse, Yukon on March 4, 1988.

NorthwesTel Inc., (the Company) and the International Brotherhood of Electrical workers, Local Union 1574, (the Union are parties to a collective agreement pursuant to which I am the arbitrator chosen by the parties to resolve the grievance by making a final and binding decision.

The grievance, which both parties agree is properly before me, arose from the imposition of a fourteen day suspension from work upon each grievor. The suspension arose as a consequence of an incident occurring in the company compound at Whitehorse, Yukon on November 16th 1987. The company imposed the suspension on the grievors pursuant to Paragraph 2.01 of the collective agreement.

George Hanson is the Manager of Productivity with the company and has been so employed for the previous nineteen months. On November 16th, 1987, Mr. Hanson was doing time and motion studies at the company compound and at other locations in the City of Whitehorse. While at the company compound Mr. Hanson was a passenger in a vehicle being driven by a fellow employee, Mr. Mills. Mr. Mills spotted a NorthwesTel truck being driven by Mr. Lorenzen with Mr. Bianowsky as a passenger and pulled up to that vehicle with the intention of checking with the grievors to determine whether or not their truck contained some safety pylons. Mr. Hanson got out of the Mills vehicle and walked up to the passenger side of the vehicle containing the grievors at which point Ron Bianowsky jumped out of his vehicle.

Mr. Hanson testified that upon Ron Bianowsky exiting that vehicle a strong odour of marijuana wafted into the air. Mr. Hanson testified that he then proceeded to lean into the cab of the grievors’ vehicle and testified the odour of marijuana was obvious. At that point, according to Mr. Hanson, Ron Bianowsky said "it smells perfume, eh George" and Mr. Hanson took that comment to be directed to George Lorenzen. Mr . Hanson testified that he was upset and when Mr. Lorenzen stated, "‘Gee, you’ve done this before" this allegation aggravated the distress of Mr. Hanson and he returned to the vehicle driven by Mills in which he had arrived at the compound. At that point, stated Mr. Hanson, Ron Bianowsky approached the passenger side of the vehicle in which Hanson was now seated, opened the passenger door and. said "It smelled like perfume, didn’t it" to which Mr. Hanson states he replied "No, it smelled like pot" . Ron Bianowsky then exchanged brief pleasantries with Mr. Mills following which Hanson directed Mills to drive downtown whereupon he reported the incident to his supervisor and that evening prepared a memo on the incident.

Mr. Hanson testified that he has previously come into contact with marijuana on at least 40 or 50 occasions and has smoked marijuana himself on many occasions, has seen it used at parties, and is very familiar with the odour. In cross-examination he stated that he has also smelled the odour of Turkish cigarettes and Drum tobacco and is well able to distinguish the odour of these substances from the odour of marijuana. As to the suggestion from counsel for the grievors that Mr. Hanson has in the past been teased about using particularly powerful smelling cologne, Hanson stated that he did not feel that he used cologne in such as fashion nor was he aware that there had been any comments in this regard by fellow employees.

Alex Ilchuk, Outside Plant Supervisor for the company, testified that Bianowski, and Lorenzen were working as members of his crew in November of 1987. Bianowsky was a heavy equipment operator and Lorenzen a construction lineman. He learned of the incident at the compound at approximately 2:00 p.m. and proceeded directly to a work site in Riverdale to locate Bianowsky and Lorenzen. Upon his arrival he found the two grievors to be working and using he derrick truck which was operated by Bianowsky. He stated he approached both of them and handed them suspension letters and informed them of the allegations regarding the use of "pot". He testified he went to the vehicle and inspected the ash tray and found only regular cigarette butts. No search was made of the private persons of the grievors. In cross-examination, again on the subject of Mr. Hanson’s use of cologne, Mr. Ilchuk stated that he had not previously heard any reference to Mr. Hanson’s use of that particular type of fragrance.

George Lorenzen testified that he was driving a company truck in which Bianowsky was a passenger. He states the two of them were seated in the truck at the compound , the motor was running, and they were going over a materials list for a particular job to be performed in the afternoon. He states that Mr. Hanson came up to the truck, leaned in and made a sniffing motion. He states that he has known Mr. Hanson for many years as a fellow employee in the Inuvik area and stated that in his opinion Mr. Hanson does in fact use cologne. Lorenzen also testified that prior to Mr. Hanson’ s arrival he was in fact smoking a Drum cigarette, and emphatically denies there was any marijuana in the vehicle. In cross-examination Mr. Lorenzen stated that during the course of the review held on November 19, 1987 by Mr. Ilchuk it never occurred to him to mention he had been smoking a Drum cigarette prior to the arrival of Hanson at the truck. However, he added he does not intend to suggest the odour of Drum cigarette tobacco smells like "pot".

Ron Bianowsky testified that he was in the truck with Lorenzen at the NorthwesTel compound. He states that George Hanson came over the truck leaned into the cab , and sniffed to which activity Bianowsky said "smells like perfume, George". He states he has known Hanson for some time and that Mr. Hanson wears a lot of cologne. When Hanson returned to the vehicle being driven by Glen Mills, Bianowsky agreed that he walked back to the Mills vehicle but states he did not repeat any comment to Hanson about using perfume and does not recall Hanson making reference at that point to "pot". He stated he did not smoke marijuana on that day and is familiar with the smell. In cross-examination Mr. Bianowsky indicated that over the years he has known George Hanson he is of the opinion Hanson is well-known for heavy use of cologne. He also stated that after the comment about the perfume, Hanson did not say anything further and in fact acted "snooty" during the entire contact between the parties.

Judy Corley, Manager of Human Resources for NorthwesTel testified that George Hanson has been reporting to her for the past nineteen months, and that she sees him on a daily basis at the downtown company office. She stated she has never before heard any comments concerning the use of cologne by Hanson and went on to add that she has a sensitive nose (barring times when she is afflicted by a cold and did not detect any such odour of cologne emanating from Hanson.

It is obvious from the testimony of Mr. Bianowsky that he harbours ill feeling toward Mr. Hanson as a consequence of what he feels is inappropriate attention having been paid by Hanson to Bianowsky’s girlfriend. However, there is nothing on the evidence before me to suggest that such a feeling is reciprocated by Hanson towards Bianowsky. The issue basically boils down to the accuracy and reliability of Mr. Hanson’s nose in detecting the odour of marijuana. It is obvious that the standard of proof to be utilized is a balance of probabilities and not the standard of proof utilized in criminal proceedings which, is proof beyond a reasonable doubt. However, there still must be clear and cogent evidence leading one to the conclusion on the basis of reasonable probability that the grievors were smoking marijuana in the vehicle prior to the arrival of Mr. Hanson.

The issue of the cologne use raised by the grievors in my view did not have any historical substance and was designed as a means to divert the attention of Mr. Hanson from pursuing his allegations of marijuana consumption or was designed by Bianowsky to be taken as a sarcastic personal slam against Hanson. However, such a comment cannot be used as proof to support the proposition that Hanson’s allegation was well-founded.

The possibilities inherent in the incident include the following: 1) Both grievors were smoking marijuana. 2) One or the other was smoking marijuana, with or without the knowledge and consent of the other. 3) Someone other than one or other of the grievors had smoked marijuana in that vehicle earlier in the day with or without the knowledge and/or consent of either or both. 4) The odour detected by Mr. Hanson was not in fact marijuana or other illegal narcotic substance belonging to the cannabis family.

There was no evidence indicating symptoms of marijuana usage by either of the grievors. The odour detected by Hanson, according to his testimony, emanated from the interior of the vehicle. It is a relatively well-known fact that marijuana has a peculiar odour. It is also within the realm of common knowledge that marijuana users often attempt to mask the odour by burning various types of incense, candles or by spraying an area with a variety of fragrances.

Although the standard of proof used in this matter is the civil, as opposed to criminal, standard it is still something much more than mere suspicion. It would be dangerous to find on the evidence before me that the grievors were using marijuana or similar illegal substance on November 16th, 1987. There is a vast difference between circumstances which would cause Mr. Hanson and Mr. Ilchuk to take appropriate investigatory proceedings and the kind of evidence required to justify the imposition of discipline for "just cause" pursuant to the collective agreement. Had the allegation of marijuana use been proven, imposition of discipline would in my view have been justified.

The grievance is allowed. I order the suspension of each grievor to be vacated with restoration of fourteen days pay to each. Further, the record of the incident and discipline shall be removed from the files of each grievor.

DATED this 11th day of March, 1988, at Sidney, British Columbia.

Arbitrator