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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 TRAINMAN J.C. BRANDON OF MELVILLE, SASK.

 

 

ARBITRATOR : Michel G. Picher

 

APPEARING FOR

THE COMPANY : B. Laidlaw - Labour Relations Officer, Edmonton

G.C. Blundell - Manager Labour Relations, Edmonton

J.S. Edgar - Manager Train & Engine Service

 

APPEARING FOR

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

J.W. Armstrong - General Chairperson, Edmonton

Mel G. Eldridge - Vice-General Chairperson

D. Gagnon - Secretary

Jim Brandon - Grievor, Melville

 

 

 

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

 

 

 

 

AWARD

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

EX PARTE

Dispute

Appeal of the discharge of J.C. Brandon of Melville, Saskatchewan effective February 3, 1992 for conduct incompatible with his employment as evidenced by his involvement in illegal substances and appeal the time held out of service between December 4, 1990 and February 3, 1992 inclusive to be considered discipline.

Companyís Statement of Issue

In the November 20, 1990 edition of the "Melville Advance" an article appeared indicating that J.C. Brandon had been charged with possession of hashish, possession of cocaine, possession of a narcotic for the purpose of trafficking and trafficking of a narcotic. As a result of this article an investigation was held by the Company on December 4, 1990 and a statement taken from Trainman Brandon. While he was able to confirm that the charges had been laid against him, Trainman Brandon refused to discuss the circumstances surrounding the charges under instructions from his lawyer. He did, however, admit to prior convictions for possession of a narcotic and when asked, agreed to undergo a voluntary drug test.

Following the giving of this statement Trainman Brandon was advised by the Company that he would be held out of service until he could provide an explanation for the charges. He was also ordered to undergo a drug test on December 11, 1990, the results of which were negative.

At the request of Trainman Brandon two further statements were taken, one on January 9 and 15, 1991 and one on June 13, 1991. Trainman Brandon continued to refuse to answer any questions relating to the charges pending against him.

 

 

 

 

 

At his trial on January 22, 1991 Trainman Brnadon was convicted of one count of possession of marijuana and one count of possession of hashish and was sentenced to ninety (90) days in jail. He was found not guilty of the other charges.

On January 24, 1992 a final statement was taken from Trainman Brandon by the Company at which the Union made several objections to the manner in which the investigation was being conducted, including the length of time it took to complete the formal investigation and the comments made by the presiding Officer. On February 3, 1992 Trainman Brandon was discharged from service with the Company.

The Union appealed the discipline imposed that Trainman Brandon had been unjustly discharged and wrongly held out of service from December 4, 1990 to February 3, 1992. The Union also claimed that the investigation conducted on January 24, 1992 was not conducted in a fair and impartial manner. The Union requested that Trainman Brandon be immediately reinstated and reimbursed for all lost earnings since December 3, 1990.

The Company has denied the Unionís request.

EX PARTE

Dispute

Appeal of the dismissal of Trainman J.C. Brandon of Melville, Saskatchewan on February 3, 1992 for conduct incompatible with employment as evidenced by involvement in illegal substances and appeal of the Companyís action in holding Conductor Brandon out of service between December 4, 1990 and February 3, 1992.

Unionís Statement of Issue

In the November 20, 1990 edition of the "Melville Advance" an article appeared indicating that Trainman Brandon has been charged with possession of hashish, possession of cocaine, possession of a narcotic for the

 

 

 

purpose of trafficking and trafficking of a narcotic. As a result of this article an investigation was held by the Company on December 4, 1990 and a statement taken from Trainman Brandon. While he was able to confirm that the charges had been laid against him, Trainman Brandon stated that he was under instructions from his lawyer not to discuss the circumstances surrounding the charges. He did, however, admit to prior convictions for possession of a narcotic and, when asked, agreed to undergo a voluntary drug test.

Following the giving of this statement Trainman Brandon was advised by the Company that he would be held out of service until he could provide an explanation for the charges. He was also ordered to undergo a drug test on December 11, 1990 which test established that Trainman Brandon was not using narcotics.

At the request of Trainman Brandon another statement was taken on January 9, 1991. Trainman Brandon indicated that he was still unable to answer questions relating to the circumstances surrounding the laying of the criminal charges against him. At the end of this statement, Union Representative A.J. Grimeau requested an opportunity to ask some questions of Trainman Brandon but his request was denied by the Company officer. On January 15, 1991 a further statement was held at which time Mr. Grimeau was permitted to ask some questions of Trainman Brandon. During this statement and a subsequent one on June 13, 1991 Trainman Brandon refused to answer any questions relating to the charges pending against him.

At his trial on January 22, 1992 Trainman Brandon was convicted of one count of possession of marijuana and one count of possession of hashish and was sentenced to ninety (90) days in jail. He was found not guilty of the other charges.

On January 24, 1992 a final statement was taken from Trainman Brandon by the Company at which the Union made several objections to the manner in which the

 

 

 

investigation was being conducted, including the length of time it took to complete the formal investigation and the comments made by the presiding officer. On February 3, 1992 Trainman Brandon was discharged from service with the Company.

The Union appealed the discipline imposed and claimed that Trainman Brandon had been unjustly discharged and wrongly held out of service from December 4, 1990 to February 3, 1992. The Union also claimed that the investigation conducted on January 24, 1992 was not conducted in a fair and impartial manner. The Union requested that Trainman Brandon be immediately reinstated and reimbursed for all lost earnings since December 3, 1990.

The Company denied the Unionís request.

The record discloses that the grievor was convicted of one count of possession of marijuana and one count of possession of hashish, as a result of which he was sentenced to serve 90 days in jail. The Companyís disciplinary investigation of Mr. Brandon became extended, partly by reason of his refusal to answer certain questions which, on the advice of his lawyer, would have jeopardized his then forthcoming criminal trial.

The evidence discloses that in October of 1990 RCMP investigators, acting undercover, received a marijuana cigarette from Mr. Brandon at his home near Melville, Saskatchewan. When he was arrested, some time later, a small quantity of hashish was discovered in his wallet. Further, a search of his home disclosed 16 marijuana plants growing in the basement. Although the Union suggests that the useable amount of marijuana from those plants would have been approximately three ounces, evidence given at the criminal preliminary hearing by officer David Gordon Rudderham of the RCMP estimated the useable volume to be in the order of one pound. It further appears that traces of a white powder identified as cocaine were found in the grievorís home, although no charges in relation to the possession of cocaine were made.

The Company learned of the criminal charges against Mr. Brandon as a result of a news report in the "Melville Advance" on November 20, 1990. He was convened for an investigation beginning December 4, 1990, and was held out of service. It may be noted that at that time the charges against him included

 

 

 

trafficking in marijuana and unlawful possession of cocaine. The preliminary court hearing in respect of the criminal charges against Mr. Brandon was attended by Assistant Superintendent R.E. Hedley. It is not contested that during the course of the preliminary investigation the information related above was disclosed. In addition, RCMP Constable T.G. Philips disclosed that during the course of a conversation Mr. Brandon indicated that he had used cocaine at an earlier time in his life, when he resided in Edmonton, although he did not use it any more.

The grievor remained out of service pending the completion of his trial. In the arbitratorís view, given the information known to the Company prior to his conviction, as disclosed in the preliminary hearing, it had reasonable probable grounds to withhold him from service (Re Ontario Jockey Club (1977), 17 L.A.C. (2d) 176 (Kennedy) and CROA 1703). Following his conviction on January 22, 1992, and admissions made at a final employeeís statement taken on January 24, 1992, the grievor was discharged effective February 3, 1992 for "conduct incompatible with your employment as evidenced in your involvement in illegal substances".

The Union submits that the conduct of the investigation by the Company was in violation of the requirements of a fair and impartial hearing under the terms of the collective agreement. Upon a review of the record, the arbitrator cannot sustain that submission. For reasons which are understandable, Mr. Brandon declined to provide specific information in relation to those matters which touched upon the criminal charges against him. However, his refusal to answer questions caused the investigation to become substantially protracted, leading to a certain amount of tension between himself and the investigating officer. It does appear that on two occasions the investigating officer used less than flattering language which tended to betray his impatience. In the arbitratorís view, however, without condoning what was said, the comments made by the presiding officer were not such as to vitiate the proceedings or establish that there was any meaningful or substantial departure from the requirements of fairness and impartiality. I am also satisfied that the grievor was given the fullest opportunity to question and rebut the evidence against him.

The case at hand is an unfortunate one, having regard to the length of Mr. Brandonís service. He commenced working for the Company in July of 1975. During his 15 years with the Company, he performed good service and, it appears, was only disciplined on three occasions, having 15 demerits on his record at the time of his discharge.

 

 

 

There are, however, other factors to be weighed in the balance. At the time of his discharge, Mr. Brandonís involvement with narcotics was longstanding, as reflected in his prior criminal record. ON January 27, 1978, he was convicted of possession of a narcotic for the purposes of trafficking, in Edmonton. He was again convicted of possession of a narcotic by the Melville RCMP on February 3, 1986. On March 20, 1989, he was again convicted of possession of a narcotic, following charges by the Regina RCMP. The prior record of those convictions, each of which resulted in a fine, substantially explains the more serious sentence of 90 days in jail which resulted from the final conviction which led to the termination of his employment.

Counsel for the Union seeks to characterize the case as one in which the business interests of the employer are not shown to be affected. In this regard, he stresses that the grievor denies ever having consumed drugs while on duty or subject to duty, and that the criminal charges against him are, on their face, not work related. He further points to the fact that the grievor passed two drug tests following the charges against him, that he offered to participate in the EAP program and did attend 16 sessions of drug counselling at the Saul Cohen Centre in Melville, Saskatchewan commencing in June, 1991. There is no indication, however, that he has maintained any ongoing involvement in follow-up or support programs since that time.

In the arbitratorís view, this is not a case, notwithstanding the able argument of counsel for the Union, which involves nothing more than the casual off-duty use of a prohibited narcotic. Nor does it involve an isolated incident. The evidence before the arbitrator discloses that the grievor had an involvement with drugs, including prior convictions for possession and possession for the purposes of trafficking, extending back over a period of 14 years prior to the events leading to his conviction in January of 1992.

As noted in CROA 1703, when outward evidence indicates to the Company, which must protect its interest as a public carrier involved in a safety-sensitive industry, that an employee has substantial involvement in the drug culture, which extends to producing narcotics in substantial quantities, it may have reasonable grounds to entertain substantial concerns that such a person is a habitual user and is drug dependent. In the case at hand, the grievorís admission that he carried hashish in his wallet for a period of some two weeks raises, at a minimum, serious questions in respect of his possession of that substance while on duty or subject to duty. Further, the production of substantial quantities of marijuana by the grievor in his home, in useable amounts estimated by the police to be in order of one pound, confirms beyond any substantial doubt that Mr. Brandonís involvement in the drug culture was something more than casual.

 

 

 

It is trite to say that each case must be decided on its own merits. While counsel for the Union submits that Mr. Brandonís circumstances are similar to those disclosed in CROA 2477, the arbitrator cannot agree. In the instant case, Mr. Brandonís prior criminal record is a significant distinguishing feature. So too, I think, is the relatively limited effort indicated in respect of his involvement in treatment programs. The grievor in CROA 2477 involved himself much more substantially in rehabilitation prior to his reinstatement by participating in in-patient treatment and follow-up programs of both Alcoholics Anonymous and Narcotics Anonymous. Mr. Brandon does not come to the arbitration hearing with documentation that is compelling in respect of his efforts at rehabilitation or the likelihood of continued success, particularly in light of his prior record. While it is to be hoped that he has, as he states, changed his lifestyle, the arbitrator is not persuaded that in all of the circumstances the decision of the Company to remove him from his employment should be disturbed.

For the foregoing reasons, the grievance must be dismissed.

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

 

 

 

 

 

 

______________________________

Michel G. Picher - Arbitrator