(the “Company”)







(the “Union”)







Sole Arbitrator:                       Michel G. Picher




Appearing For The Union:

            M. A. Church                     – Counsel, Toronto

            J. Robbins                           – General Chairman, Sarnia

            J. Surgenor                         – Grievor



Appearing For The Company:

            F. O’Neill                           – Manager, Labour Relations, Toronto

            D. Gagné                            – Sr. Manager, Labour Relations, Montreal






A hearing in this matter was held in Montreal on Tuesday, November 24, 2009.





            The Union grieves the discharge of Yard Foreman Surgenor for an alleged violation of Rule G. The joint statement of issue reflects the positions of the parties in the following terms:



Discharge of Yard Foreman Jeffrey Surgenor.



On March 03, 2008, Yard Foreman Surgenor was required to attend a Company investigation in connection with “alleged violation of CROR Rule G and Company Drug & Alcohol Policy at CN MacMillan Yard while employed as conductor on 09:30 Extra South on February 12th, 2008.” Mr. Surgenor, subsequent to the investigation, was discharged.


It is the Union’s position that the discipline assessed, in consideration of all the factors relating to this matter, was unwarranted but in any event, too severe. The Union is requesting the reinstatement of Mr. Surgenor without loss of seniority and benefits and compensated for all lost earnings as a result of the discharge. In the alternative, that the discipline assessed be reduced accordingly in consideration of all the mitigating factors.


The Company disagrees.


            The facts are not in dispute. Following an incident which resulted in the derailment of two cars on February 12th, 2008, the grievor and his locomotive engineer were requested to take drug and alcohol test. Mr. Surgenor’s test was returned positive for both cocaine and marijuana, although the levels of reading for the drugs in questions were not indicated in the report provided by the testing agency.


            The grievor denies that he was impaired while at work. His explanation is that during an earlier social occasion, while off duty, he did share a marijuana joint with some friends. He has no recollection of ever having consumed cocaine and assumes that there may have been traces of cocaine in the marijuana cigarette, which would explain his positive test.


            During the course of the Company’s investigation the grievor stated that the party which he attended occurred on the 9th of February, a day for which he was not on call. The Company’s representatives note that during his interview with the testing authority he apparently indicated that he might have consumed the marijuana cigarette on the 10th or 11th of February, a time in somewhat closer proximity to the events of February 12, 2008.


            The Arbitrator is inclined to prefer to grievor’s recollection of the time of the party as he gave it in the course of the Company’s investigation. It is not implausible that the party would have been on Saturday the 9th of February 2008. More significantly, the grievor’s conversation with the representative of the testing agency was more casual and his statement at that time was obviously not made in the face of a possible disciplinary measure as a result of a Company investigation. In the result, the Arbitrator does have difficulty concluding, as the Company would have, that the grievor was in fact guilty of a violation of rule G while at work on February 12, 2008. Bearing in mind that the Company has the burden of proof, that crucial fact is simply not made out on the evidence before me.


            That is not, of course, to say that the grievor did not create a circumstance which gave the Company legitimate concerns. In the circumstances while I am satisfied that a reinstatement is appropriate, this is not an appropriate case for compensation.


            The grievance is therefore allowed, in part. The Arbitrator directs that Mr. Surgenor be reinstated into his employment forthwith, with no compensation for wages and benefits lost and with no loss of seniority. The grievor’s reinstatement shall be conditioned, however, on his accepting to be subject to random, unannounced drug and alcohol testing for a period of not less than two years following the date of his reinstatement. Any positive test result during that period will be grounds for his termination. Upon his return to work, in light of the prior awards of the Arbitrator concerning Mr. Surgenor, his disciplinary record shall stand at forty demerits.



Dated at Ottawa this 30th  day of November 2009.