CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4030
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEES DIVISION
Dismissal of Mr. D. Lovett.
JOINT STATEMENT OF ISSUE:
By way of
form 104 dated
denies the Union’s contentions and declines the
(SGD.) WM. BREHL (SGD.) S. SEENEY
PRESIDENT DIRECTOR, INDUSTRIAL RELATIONS
There appeared on behalf of the Company:
M. Goldsmith –
Manager, Labour Relations,
B. Lockerby –
Labour Relations Officer,
W. Schuerman –
Labour Relations Officer,
There appeared on behalf of the
Wm. Brehl –
D. W. Brown –
A. R. Terry –
A. Della Porta –
AWARD OF THE ARBITRATOR
The material before the Arbitrator establishes, beyond controversy, that Mr. Lovett did violate a number of rules. Firstly, it appears that as the grievor was proceeding to a storage track on his Chase tamper at the end of the working day the brakes on his machine locked up and he was unable to move it any further. It appears that he tried for several minutes to revive the braking system, but without success.
Mr. Lovett’s machine was the first in a series of machines moving towards the storage track. He was followed by a hy-rail truck which was proceeding behind him in a reverse direction with two persons aboard. Unfortunately, Mr. Lovett made no attempt to inform the operator of the truck that he was stopped on the track, whether by radio by hand signal and as a result the truck collided into his tamper.
One of the passengers in the hy-rail vehicle was Assistant Track Maintenance Supervisor Harvey Pardy. When Mr. Pardy encountered Mr. Lovett after the collision he formed the opinion that Mr. Lovett’s eyes were glossy and that his speech seemed slurred. According to his report “I smelled something like smoke on Doug and thought it might be the smell of marijuana.” Based on that report Superintendent of Track Renewal, Tim Voykin, asked the grievor to submit to a substance test, which he agreed to do. The urinalysis test which he took proved positive for drugs. Although the report provided does not specify the nature of the drug, it does not appear disputed that the grievor had a positive reading for the consumption of marijuana. Following an investigation Mr. Lovett was discharged for having failed to signal his stopped machine to the occupants of the hy-rail vehicle who were following him, having a personal telephone on his person while he was operating the tamper and for a violation of Rule G.
While the Arbitrator can appreciate the Company’s concerns, the evidence presented in the case at hand falls short of establishing, on the balance of probabilities, that the grievor was impaired by marijuana or any other drug at the time of the collision. At most a urinalysis test would indicate the consumption of marijuana at some point in the previous thirty days, with no indication as to the precise time of consumption or the amount consumed. Nor, in the Arbitrator’s view, do the symptoms of glassy eyes or slurred speech necessarily suggest the consumption of marijuana, being more commonly associated with the consumption of alcohol. Obviously, a cheek swab test could have confirmed or ruled out impairment with some precision. However that test was not utilized by the Company and the urinalysis test which it opted to use simply cannot be said to establish that the grievor was impaired at the time or that he had otherwise violated CROR Rule G.
I am satisfied that the Company has clearly demonstrated that the grievor was in violation of operational rules by failing to properly signal to the ensuing vehicle that his tamper machine was stopped on the track, and that he also violated rules by having a personal electronic device on his own person while he was operating the tamper. The sole issue is whether those infractions merit the assessment of discharge in all of the circumstances.
Arbitrator’s view there are a number of mitigating factors which need to be
taken into account. Hired in 1978, the grievor has some thirty-three years of
service with the Company. While it is true that the Company made efforts to
communicate to employees the seriousness of personal cell phone use while
working, there is some question as to whether the severity of discipline which
might result was in fact communicated to him. The unchallenged representation
In the Arbitrator’s view, given the length of the grievor’s service, his prior disciplinary record is relatively positive, save for an earlier dismissal which was rescinded by the Company for conduct entirely unrelated to safe operating. While it is also true that he received thirty demerits for a collision incident in 1996, his record was clear at the time of the current incident of November 24. 2010 and since 1996 he had been disciplined only once, receiving ten demerits for a vehicle infraction in 2006.
The Arbitrator readily appreciates the Company’s right to establish strict rules with respect to the possession and use of cell phones or other recreational devices while on the job, and to place employees on notice that any infractions in that regard will be treated with most severe levels of discipline. However, I am not persuaded that the instant case is such as to merit the dismissal of an employee of thirty-three years’ service with a relatively positive employment record. In my view the substitution of a lengthy suspension will be sufficient to bring home to the grievor the importance of respecting safe operating rules, including the rule against personal communication devices.
is therefore allowed, in part. The Arbitrator directs that the grievor be
reinstated into his employment forthwith, without loss of seniority and without
compensation of wages and benefits lost. The period between his termination and
reinstatement shall be recorded as a suspension on his record for the collision
which he caused on the Laggan Subdivision on