ah344

 

 

IN THE MATTER OF AN ARBITRATION

 

B E T W E E N :

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

- a n d -

UNITED TRANSPORTATION UNION

(the "Union")

 

GRIEVANCE RE YARD FOREMAN D.K. TURTA

 

ARBITRATOR : Michel G. Picher

 

APPEARING FOR

THE COMPANY : G.C. Blundell - Manager Labour Relations, Edmonton, Alta.

M. King - Counsel, Edmonton, Alta.

B. Laidlaw - Labour Relations Officer, Edmonton, Alta.

Dr. G. Jones - Witness, Edmonton, Alta.

D. Crouch - Witness, Salt Lake City, Utah

R. Pelesh - District Superintendent -

Transportation, Saskatoon, Sask.

 

APPEARING FOR

THE UNION : D.W. Ellickson - Counsel, Toronto

J.W. Armstrong - General Chairperson, Edmonton, Alta.

M.G. Eldridge - Vice General Chairperson, Edmonton

Dale Turta - Grievor, Saskatoon

D. Gagnon - Secretary

 

 

A hearing in this matter was held in Edmonton on October 2, 1994.

 

 

 

 

A W A R D

 

The facts giving rise to the dispute and the issues are summarized in a joint statement of issue filed at the hearing, which reads as follows :

 

Dispute

Appeal of the dismissal of Yard Foreman D.K. Turta on November 24, 1993 for conduct incompatible with employment as evidence by involvement with the possession of marijuana.

Joint Statement of Issue

On October 23, 1993 Yard Foreman Turta was taking E.S.E. classroom training at Gimli, Manitoba. During his off hours he was charged with possession of marijuana. As a result of the charge, Yard Foreman Turta was held out of service pending an investigation which took place on November 12, 1993. Immediately following the investigation Yard Foreman Turta was dismissed from the Companyís service effective November 12, 1993.

The Union appealed the Companyís decision to discharge Yard Foreman Turta on the grounds that, in all the circumstances, discharge was not warranted and requested that he be reinstated and placed back into E.S.E. Training with no loss of seniority and with full compensation.

The Company has denied the Unionís request.

 

The evidence discloses that Yard Foreman Turta was attending a locomotive engineerís training program at Gimli, Manitoba in October of 1993 when he was charged with possession of marijuana arising out of an incident on October 23. He was convicted. It is common ground that Mr. Turta was found by a police officer to be in possession of a single marijuana joint and two "roaches" - the stubs of used marijuana cigarettes. The incident occurred during his off hours in the evening, in a parking lot outside a drinking establishment. He plead guilty to the charge and was fined $112.

 

 

A disciplinary investigation was held by the Company on November 12, 1993. During the course of that interview, Mr. Turta admitted to having consumed marijuana previously, on an occasional basis, estimated at perhaps once a month. However, he denied ever doing so other than on social occasions while off-duty, stressing that he never smoked marijuana when he was on duty or subject to duty. Mr. Turta further agreed to take a drug test. The test was administered on November 15, 1993, at which time the grievor tested positive for marijuana. Statements made by Mr. Turta during the course of the disciplinary investigation caused the Company natural concern. Although he denied consuming marijuana while on duty or subject to duty, he stated that he used to smoke marijuana on a more than occasional basis a few years prior stating he had " .... since tried to quit, however, once in a while I just canít help myself". It is common ground that following his conviction he contacted the Companyís Employee Assistance Program.

The grievorís credibility in the eyes of the Company was further called into question when he responded in the negative when asked, on November 12, whether he currently smoked marijuana. The fact that he tested positive three days later suggests a great likelihood that the grievor smoked marijuana in the five-day period prior to November 15 or, alternatively, that his level of consumption was considerably higher than he admitted.

The Company called two expert witnesses to establish what is referred to as the "carry-over effect" of marijuana. A paper by Von O. Leirer and others, entitled "Marijuana Carry-Over Effects on Aircraft Pilot Performance", published in the journal Aviation, Space, and Environmental Medicine in March, 1991 at pp.221-227 was cited to the arbitrator and discussed by the two expert witnesses, Dr. Graham R. Jones, a medical toxicologist who is Chief Toxicologist, Office of the Chief Medical Examiner for Alberta and Mr. Dennis A. Crouch, Assistant Director of the Centre for Human Toxicology at the University of Utah in Salt Lake City. The Leirer study and the testimony of the two experts confirm that marijuana can produce a degree of impairment as much as 24 hours after ingestion, and that in that period of time impairment was detected in a group of pilots who were called upon to perform complex operations in a flight simulator. According to both Dr. Jones and Professor Crouch, impairment is a relative concept, which must be defined in relation to the complexity of cognitive and motor functions to be performed by the subject. They agreed that, for example, to date studies have not shown that marijuana causes impairment which prevents the operation of a motor vehicle beyond a period of eight to ten hours after ingestion. In addition to the complexity of the operation in relation to which impairment is being assessed, factors such as the quantity and quality of the marijuana consumed and the tolerance of the individual subject can influence the outcome.

The expert testimony was advanced by the Company in support of its submission that the grievorís admitted occasional use of marijuana in the past gives rise to reasonable inference that he would have been on duty or subject to duty during periods of time when he was susceptible to carry-over effects. With respect, the arbitrator cannot find, on the evidence presented, that the conclusion is made out. Firstly, as is evident from the testimony of the expert witnesses, there have been no studies to reliably establish the degree of decrement over time which results from the carry-over effect, as it would apply to the functions of a yard helper or yard foreman in the position of the grievor. The testimony of the witnesses to the effect that an individual would not be impaired for the purposes of drivng a motor vehicle beyond eight to ten hours after ingestion raises substantial questions as to what the findings of a study directed to the grievorís working classifications might reveal. Without diminishing the legitimacy of the Companyís concerns in this area, the arbitrator cannot extrapolate from the Leirer study of aircraft pilots a conclusion that a carry-over effect would cause equal or comparable impairment in respect of the functions of a yard foreman, which are admittedly less complex and sophisticated. I am satisfied that, in keeping with normal rules of evidence, in respect of an issue so important, an affirmative finding, on the balance of probabilities, based on the carry-over effect of marijuana, should not be made absent compelling expert testimony based directly on an examination of impairment related directly to the job function in question.

The foregoing conclusion does not, however, dispose of the grievance. The Union submits that the grievance involves the possession of a small quantity of marijuana by an employee which is not work related, and in respect of which the Company can assert no legitimate business interest. Its counsel stresses that Yard Foreman Turta was away from Company premises and off duty when he was found in possession of marijuana, and that there is no evidence to confirm that he consumed it when he was on duty or subject to duty. In that respect, he invokes the arbitratorís decision in CROA 2477 wich concerns the off-duty possession of a prohibited drug.

The arbitrator must agree that if this case could properly be characterized as involving nothing more than an isolated incident of off-duty possession of a small quantity of marijuana, the view of the grievance and the outcome sought by the Union might be compelling. What, however, does the case disclose ? Firstly, in October of 1993, Yard Foreman Turta was not living at home, but was housed in the Companyís facility in Gimli, Manitoba, where he was being trained as a locomotive engineer. Absent any explanation, the evidence would suggest, on the balance of probabilities, that the marijuana found in his possession during the course of the evening, apparently in a cigarette contaier in his pocket, was in his possession on Company property previously.

 

 

Secondly and, perhaps most disturbing, is the fact of Mr. Turtaís subsequent drug test. As the expert testimony before the arbitrator suggests, a positive drug test is, subject to certain variables, generally indicative of marijuana consumption within a period of five days prior to the test, at least for a person described as an occasional user who would use the substance on average once a month, which the grievor claims to be. The evidence discloses that the grievor was in possession of marijuana on October 23, 1993, although it is not clear that he consumed any on that date. When interviewed on November 12 by the Company, Mr. Turta indicated that he was no longer using the substance. In fact, however, the positive drug test result which was obtained three days later discloses the likelihood of a very contrary fact.

As noted in CROA 1703, an employee found to be in possession of a narcotic bears a certain onus to be candid with his or her employer in relation to the circumstances, and the employeeís general involvement with the drug. In the case at hand, the grievorís candour is, at a minimum, questionable, in light of the positive drug test of November 15, 1993. Moreover, the fact that he subsequently tested negative on two later occasions, in tests administered at the request of the Union, does little to remove the cloud of concern raised by the earlier positive result, especially considering that it came after the grievorís arrest on October 23, 1993 and very close in time to the Companyís investigation and his denial of continuing use.

For reasons amply discussed in other awards (see CROA 1703), the Company has a legitimate concern, as a common carrier in a safety-sensitive industry, to ensure that employees entrusted with the movement of trains are not involved with drugs to a degree that would suggest drug dependence. By the grievorís own admission to his employer, as disclosed in his disciplinary interview, he had previously been involved in the use of marijuana to a degree which he could not stop on his own. In that circumstance, the revelation of a positive drug test on November 15, 1993 did, I think, give the Company reasonable grounds to question the ongoing employability of the grievor, if only as a result of the credibility of his statement during his interview to the effect that he had stopped consuming marijuana. In the arbitratorís view, an employee who seeks reinstatement into a locomotive engineerís training program must, in such circumstances, meet a higher onus than was met by Mr. Turta in the instant case. Very simply, the evidence does not establish that the grievor was no longer drug dependent at the time of his termination by the Company.

If the instant case resolved itself entirely on the isolated possession of a single marijuana cigarette in an off-duty setting, the outcome might be substantially different (see CROA 2209). For the reasons related above, however,

 

 

 

the case concerns much more than that. In light of the positive drug test, in light of Mr. Turtaís earlier admission that he could not stop using the drug on his own, the Company has substantial grounds to disbelieve Mr. Turta, and to conclude that he was in fact drug dependent so as to substantially question his employability in a safety-sensitive position. Although I am not persuaded by the arguments of the Company with respect to the carry-over effect in the case at hand, I am compelled to conclude that the Companyís concerns about the grievorís drug dependency are legitimate and well founded as they relate to his ongoing employment in a safety-sensitive position.

The mitigating factors in support of a reduction of the grievorís penalty are less than compelling, on the record. The grievorís efforts at rehabilitation, said to involve participation in the EAP program until 1993, are not documented in any way. It does not appear that Mr. Turta participates in any support group or follow-up program. He does not bring to bear the kind of record of rehabilitation disclosed, for example, in CROA 2477.

For all of the foregoing reasons, the grievance must be dismissed.

 

DATED at Toronto this 6th day of October, 1994.

 

 

 

 

__________________________

Michel G. Picher - Arbitrator