CANADIAN RAILWAY OFFICE OF ARBITRATION

SECOND SUPPLEMENTARY AWARD TO

CASE NO. 2244

Heard in Montreal, Tuesday, 9 November 1993

concerning

CANADIAN PACIFIC LIMITED

and

CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS [BROTHERHOOD OF LOCOMOTIVE ENGINEERS]

DISPUTE:

The reinstatement of Locomotive Engineer W.A. Britton, and compensation for the loss of earnings and benefits, from February 12, 1993.

JOINT STATEMENT OF ISSUE:

In Award CROA No. 2244, dated March 13, 1992, and a Supplementary Award to CROA No. 2244, dated February 12,1993, the Arbitrator imposed and clarified a number of Terms and Conditions which were to be satisfied before Locomotive Engineer William A. Britton could be reinstated into his employment with the Company.

In that Supplementary Award, the Arbitrator stated that "...  whatever the diagnosis with respect to the grievorís consumption of alcohol other than while on duty or subject to duty".

Mr. Britton obtained a Letter of Opinion, dated November 17, 1992 from a Medical Practitioner confirming that he was not an alcoholic.

The parties are in dispute as to the application of that opinion within the context of the terms and conditions imposed by the Arbitrator for the reinstatement of the grievor.

The Brotherhood interprets the opinion of the qualified Medical Practitioner as indicating that Mr. Britton is not an alcoholic and has requested that Mr. Britton be reinstated with compensation and benefits.

The Company has refused to reinstate Mr. Britton pending receipt of additional information.

FOR THE BROTHERHOOD: FOR THE COMPANY:

(SGD.) G. N. WYNNE (SGD.) M. G. MUDIE

GENERAL CHAIRMAN GENERAL MANAGER, OPERATION & MAINTENANCE, IFS

There appeared on behalf of the Company:

H. B. Butterworth - Assistant Manager, Labour Relations, IFS, Toronto

B. Scott - Labour Relations Officer, Montreal

Dr. G. Farah - Medical Consultant, Montreal

C. Bartley - Labour Relations Officer, IFS, Toronto

 

And on behalf of the Brotherhood:

R. S. McKenna - General Chairman, Ottawa

T. G. Hucker - Vice-President, Ottawa

W. Foster - Local Chairman, London

W. A. Britton - Grievor

supplementary AWARD OF THE ARBITRATOR

The material before the Arbitrator confirms that on November 17, 1992 Dr. M. Judson wrote to the Companyís physician with respect to the issue of Mr. Brittonís compliance with the conditions established in the award of March 13, 1992. Based on that letter, and on further medical information which was provided to Dr. Farah by Dr. Judson, the Company formed the opinion that Mr. Britton had failed to satisfy the conditions of his reinstatement because he had consumed alcohol during the six month period established by the Arbitrator. Secondly, based on the medical data provided, the Companyís physician formed the opinion that Mr. Britton has a continuing problem of alcohol abuse which is not compatible with his reinstatement into a safety sensitive position.

With respect to the first issue, the Arbitrator cannot agree that the evidence discloses a failure on the part of Mr. Britton to have met the conditions established in the award of March 13, 1992. There is in that award no direction that Mr. Britton was to refrain from the consumption of alcohol during the six month period of the conditions. From a strictly technical point of view, it is arguable that the letter of November 17, 1992 from Dr. Judson falls short of satisfying the conditions established, to the extent that it does not categorically confirm that the grievor is not alcohol dependent. However, it appears that a letter to that effect was provided in March of 1993, following the Supplementary Award of the Arbitrator dated February 12, 1993.

Viewed as a whole, the record reveals the following: by March of 1993 Mr. Britton technically complied with the conditions of his reinstatement. In the interim, however, the Companyís physician came into possession of medical data, and in particular of GGT liver enzyme readings, which gave reasonable and probable cause to believe that the grievor abused alcohol, on a regular and ongoing basis, through the six month period established by the Arbitratorís award. I am satisfied that that belief is well founded, and that the information which became known to the Company in early 1993 is such as to have given it just cause to decline to reinstate Mr. Britton into his position as a locomotive engineer. While Mr. Britton denies that he is an alcoholic, and no medical opinion confirming that he is has been placed on the record, I am satisfied that the opinion of the Companyís physician is well founded, and that, on the balance of probabilities, the grievor does have a drinking problem which could affect his performance in a safety sensitive position. In the circumstances, the Company was entitled to delay the grievorís reinstatement, pending clarification of all issues before the Arbitrator. This is not a case, therefore, for compensation. On the other hand, it cannot be asserted that the conditions of the initial award were not satisfied. In the circumstances it would appear to the Arbitrator that the equitable result, fashioned to protect the interests of both the Company and the employee, is to direct the reinstatement of Mr. Britton, forthwith, subject to strict conditions attaching to his non-consumption of alcohol.

For the foregoing reasons the Arbitrator directs that the grievor be reinstated into his employment as a locomotive engineer, on condition that he abstain from the consumption of any alcoholic beverages for a period of not less than three years from the date of his reinstatement, and that he make himself available for such random testing by breathalyzer, urine sample, blood test or otherwise, not to be administered abusively, and to such periodic medical examinations as the Company deem appropriate to confirm his ongoing abstinence from the consumption of alcohol or any drug, other than by a medical prescription.

The Arbitrator retains jurisdiction with respect to all issues in this matter.

12 November 1993 (Sgd.) MICHEL G. PICHER

ARBITRATOR