AH575

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

 

 

AND

 

 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO. 11

(the “Union”)

 

 

RE: GRIEVANCE OF W. ARCHIBALD

 

 

 

Sole Arbitrator:                      Michel G. Picher

 

 

 

Appearing For The Union:

            Ken Stuebing                 – Counsel

            Brian Strong                   – Sr. System General Chairman

            Donald McLaughlin      – System General Chairman

            Luc Couture                    – International Representative

            Wilt Archibald                 – Grievor

 

 

Appearing For The Company:

            Caroline Gilbert              – Manager, Labour Relations

            Alain deMontigny          – Manager, Labour Relations

            Randy Ward                    – S&C Supervisor

            Eric Leduc                       – Manager, Engineering, Atlantic

 

 

 

 

A hearing in this matter was held in Montreal on Wednesday, May 7, 2008.

 

AWARD

 

            This is a grievance against discharge for an alleged violation of Rule G as well as a violation of the Company’s Drug and Alcohol Policy. The Company’s ex parte statement of issue reads as follows:

 

DISPUTE:

The dismissal of S&C Installation Mechanic Mr. Bill Archibald.

 

COMPANY’S STATEMENT OF ISSUE:

S&C Installation Mechanic Mr. Bill Archibald was dismissed from Company service for alleged “Violation of CN Drug and Alcohol Policy and Rule “G” on June 25 2007.

 

The Union contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty of discharge is excessive.

 

The Union requests that Mr. Archibald be reinstated.

 

The Company disagrees and denies the Union’s request.

 

            There is no substantial conflict with respect to the facts. An employee of twenty-nine years’ service, Signal & Communications Installation Mechanic Archibald held a safety-sensitive position within the S&C department at Moncton, New Brunswick. Before the commencement of the grievor’s tour of duty on June 25, 2007 S&C Supervisor Randy Ward received a phone call from an employee expressing concern that Mr. Archibald appeared to be under the influence of alcohol. As appears from the grievor’s own statement at the disciplinary investigation conducted by the Company on July 4, 2007, Mr. Archibald was approached by Mr. Ward and was informed that someone had reported a smell of alcohol on his breath. Thereafter both the grievor’s local chairman, Mr. Donald McLaughlin and Engineering Manager Eric Leduc were called to attend at the scene. It does not appear disputed that after their arrival Mr. Leduc expressed to Mr. McLaughlin that the situation might involve the possible application of the Rule G by-pass agreement. CN Police were also summoned and proceeded to perform a breathalyser test, a test which normally involves the taking of two samples. The first sample was taken, which registered “failure”, meaning a unacceptably high blood alcohol count. However, the battery on the CN Police Officer’s breathalyser failed, and a second test, which is normally performed in accordance with Company procedure, was not possible.

 

            A number of issues arise. Firstly, the Company  maintains that on the date in question the grievor was still under the conditions of a last chance continuation of employment agreement. According to the terms of that agreement the consumption of alcohol would render him subject to discharge. The Union maintains that in fact the last chance agreement had expired on the date of these events. Secondly, the Union maintains that in the circumstances the Company was obligated to treat the grievor under the terms of the Rule G Bypass Agreement, a position disputed by the Company. Finally, the Union maintains that, in any event, the Company has not properly discharged its burden of proof of establishing that the grievor violated either Rule G or the Company’s policy on drugs and alcohol.

 

            The Arbitrator deals firstly with the issue of last chance agreement. In June of 2005 the grievor was subject to discipline by reason of having left his assignment without authorization on January 25, 2005, in circumstances which appear to have involved the consumption of alcohol. The parties then signed a last chance reinstatement contract, with the grievor being returned to work on June 27, 2005 following a four month suspension without pay. The contract, dated June 16, 2005, contains a number of conditions, including an absolute prohibition against the consumption of drugs or alcohol at any time. While it is dated June 16, 2005, the first paragraph of the conditions states, in part:

 

1.         This contract begins upon your signature and last for a minimum term of two years; …

 

            The grievor signed the contract on June 21, 2005, the same day it was signed by Mr. John M. Greene, on behalf of the Company. The signature of the Union’s representative, General Chair Richard Hunt, was added to the contract on June 28, 2005.

 

            The Company maintains that June 28, 2005 is the start date of the two year last chance agreement as applied to Mr. Archibald. The Arbitrator cannot agree. This appears manifestly to be a situation in which the contra proferentem rule of interpretation has some application. It holds that the terms of a contract should be strictly applied as against the party which was itself the author or draftsperson of the document. While the last chance agreement signed by Mr. Archibald is on its face a document negotiated among the Company, the grievor and his union, the reality is that the terms and conditions of the agreement were essentially determined and articulated by the Company itself. For reasons it best appreciates, it stipulated that the contract was to be for a two year period beginning at the time the grievor signed it. Moreover, it appears clear that the signature of Mr. Hunt, on behalf of the Union, appended approximately a week later, was in the nature of a ratification of that which had already been discussed and agreed upon verbally. In fact, Mr. Hunt signed on June 28 which, apparently, was the day after the employee’s return to work on June 27, 2005. Given the clear language of the agreement itself the Arbitrator cannot see upon what basis it can be concluded that the two year agreement must be deemed to have commenced on June 28, 2005. By its own terms, it must clearly be viewed as having commenced on June 21, 2005 and having expired two calendar years after that date. On that basis I am satisfied that the Company cannot invoke the terms of the last chance agreement for the purposes of the discipline assessed against Mr. Archibald arising out of the events of June 25, 2007.

 

            Can it be said that the Rule G Bypass Agreement must apply in this case? I think not. The preamble to the Rule G Bypass Agreement states:

 

Employees who have consumed alcohol and/or drugs while subject to duty or while on duty will not be dismissed on the first occasion when the incident is reported by a co-worker to management.

(emphasis added)

 

The agreement then goes on to describe the procedures to be followed when the Rule G Bypass Agreement is invoked.

 

            In the Arbitrator’s view the Rule G Bypass Agreement is a salutary document whose operation should not be frustrated or undermined. It is obviously a useful instrument to promote safety and allow a form of amnesty to employees who are observed by others to be under the influence of drugs or alcohol while at work. Significantly, by its own terms, the policy is intended to be applied to the “first occasion” that an employee is reported to be impaired while on duty or subject to duty. In the grievor’s case that is plainly not what occurred on June 25, 2007. On that date Mr. Archibald had freshly completed a two year last chance agreement which was in fact precipitated by his own prior violation of the Company’s policy in respect of drugs and alcohol in 2005. He was, in other words, not a candidate for the application of the Rule G Bypass Agreement. While there may have been some initial indication on the part of Mr. Leduc that there might be a possible application of that agreement to Mr. Archibald, it is clear that Mr. Leduc was not then aware that Mr. Archibald had been subject to prior discipline, and the terms of a last chance agreement, for a previous infraction involving the consumption of alcohol.

 

            The final issue is whether in fact the grievor was impaired when he came to work on the morning of June 25, 2007, and if so, the measure of discipline which is appropriate in all of the circumstances. Counsel for the Union strenuously argues that the evidence presented at the disciplinary investigation does not confirm that the grievor was under the influence at the time. The Arbitrator cannot agree. Even if one  accepts that the evidence of the supervisors who observed the grievor, and the negative single breathalyser result indicating impairment is not admissible, there is ample material within the four corners of the Company’s investigation to make a conclusion, on the balance of probabilities, as to the state of the grievor on the morning of June 25, 2007. As noted above, the Company’s investigation was conducted on the afternoon of July 4, 2007. Through the course of the questions and answers the grievor confirms that he was viewed by an unidentified employee as having a smell of alcohol on his breath. He admits having taken the breathalyser test. When asked “Were you drinking prior to coming to work?” he responds “Yes”. While he does state that he thought that the alcohol would have cleared his system, at no point during the investigation does Mr. Archibald deny having been under the influence of alcohol when he reported for work on the morning of June 25, 2007. To put it bluntly, during the course of the investigation the grievor was obviously being confronted by a Company investigator who had, albeit indirectly, information of a report with respect to the grievor appearing to have been under the influence when he came to work on the morning of June 25, 2007. In a review of those facts Mr. Archibald, who had his Union representative with him, gave no precise information as to when he had consumed alcohol, or how much. Within the record of the investigation he simply admitted to having consumed alcohol “prior to coming to work”. He never expressly denied that he was in fact under the influence of alcohol that morning. Faced with a record so compelling, the Arbitrator is satisfied, on the balance of probabilities, that Mr. Archibald did violate Rule G and the Company’s Drug and Alcohol Policy and was impaired when he appeared for work on the morning of June 25, 2007.

 

            The only real issue is the appropriate measure of discipline in all of the circumstances. As indicated above, this is not a case in which the Company can rely upon the terms of the last chance agreement, an agreement which I am satisfied had expired at the time of these events. There are, in addition, a number of mitigating factors to take into consideration. By his own admission, Mr. Archibald is an alcoholic. He has had the benefit of participating in the activities of Alcoholics Anonymous for some three years, during which he was able to successfully honour the terms of his continuing employment agreement with the Company between June of 2005 and June of 2007. While it is obvious that he had a relapse, as this Arbitrator has acknowledged, that is not an uncommon event in the history of alcoholics generally (see, e.g., CROA 3355). The evidence also indicates that since his isolated relapse in June of 2007, Mr. Archibald has continued to abstain from alcohol and participate in Alcoholics Anonymous. Finally, as indicated at the outset of this award, he is an employee of twenty-nine years’ service whose disciplinary record is otherwise not negative.

 

            In all of the circumstances, the Arbitrator is satisfied that this is an appropriate case for a substitution of penalty, albeit on conditions fashioned to protect the Company’s interests. The Arbitrator therefore directs that the grievor be reinstated into his employment forthwith, without compensation for wages and benefits lost and without loss of seniority. Mr. Archibald’s reinstatement shall, however, be conditional upon his accepting the following conditions for a period of not less than two years from his first day of return to work:

 

He shall continue in regular attendance at the meetings of Alcoholics Anonymous, or such other similar organization as may be agreed, with his attendance to be certified to the Company and to the Union by an officer of that organization on not less than a quarterly basis;

 

He shall abstain from the consumption of alcohol and illegal drugs, and shall be subject to unannounced random drug and alcohol testing, to be administered by the Company in  a non-abusive fashion;

 

A positive drug or alcohol test or the refusal to take such a test shall be grounds for the termination of his employment, with access to the grievance and arbitration procedure to be limited to the question of whether the violation in fact occurred.

 

            The Arbitrator retains jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this award.

 

 

Dated at Ottawa this 13th day of May, 2008

 

 

_________________________________

MICHEL G. PICHER

ARBITRATOR