CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4038
CANADIAN PACIFIC RAILWAY COMPANY
the Company’s recent practice of issuing requests for employees’ personal
electronic device records that in, the
JOINT STATEMENT OF ISSUE:
In recent months the Comp[any has requested employees’ personal electronic device records for the period covering each employee’s entire tour of duty in which the Company alleges the employee was involved in a significant accident or incident.
It is the
disagrees and has denied the
(SGD.) D. R. ABLE (SGD.) M. THOMPSON
GENERAL CHAIRMAN LABOUR RELATIONS OFFICER
(SGD.) D. OLSON
There appeared on behalf of the Company:
M. Thompson –
Labour Relations Officer,
R. Hampel –
D. Freeborn –
Manager, Labour Relations,
D. Burke –
Labour Relations Officer,
There appeared on behalf of the
K. Stuebing –
D. Able –
D. Olson –
D. Fulton –
Sr. Vice-General Chairman,
G. Edwards – Sr. Vice-General Chairman, Revelstoke
H. Makoski –
B. Hiller – General Chairman,
T. Beaver –
I. Cole –
S. Kimit –
AWARD OF THE ARBITRATOR
the award of this Office in CROA&DR
3900 the parties have encountered a number of areas where they are in
disagreement as to the proper application that award and/or the appropriateness
of certain practices apparently followed by the Company since that award. The
matter was presented on the basis of certain stated examples presented by the
The first issue
raised by the
In CROA&DR 3900 the following passage appears:
… The proper application of the Company’s policy could
not, in my view, allow the Company to request personal cellular phone records
covering a twenty-four hour period, as occurred for example in the
greatest respect, the Arbitrator cannot sustain the
I consider it significant that the employee is at the service of the employer in an unsupervised environment for the entire period of his or her tour of duty. To provide other than a clear, bright line test for the period for which records can be demanded would, in my view, prompt disagreements and disputes as to what is the appropriate cut-off time for pre-incident calls and, alternatively, whether post-incident calls can be considered informative for the purposes of a given incident or accident. In my view the more efficient administration of this aspect of the Company’s policy as well as the evidence which will be tendered in related cases is better served by simply establishing that the entire tour of duty is a relevant period of examination for the purposes of determining an employee’s involvement in the use of his or her personal communication device. The conclusions to be drawn from the records so produced will obviously be a matter for argument, should the parties be in any disagreement in that regard. With respect to the issue of the time for which the Company can properly request cell phone or communication device records, the position of the Company is therefore correct and that time is the entire duration of an employee’s tour of duty.
The Union next
objects to what it characterizes as the inappropriate use or attempted use of
cell phone records in cases which do not involve any significant incident or
accident. In this regard it cites the example of Conductor Dave Thomas of
Coquitlam who was the subject of a disciplinary investigation held on
With the greatest respect to the submission of the Company, it is no answer to counter that the collective agreement contains no restriction on when cell phone records can be demanded. The same could arguably be said about the collecting of blood samples from employees. The question is not whether the collective agreement expressly deals with the issue, rather it is whether the implicit limitations on management’s rights, to be reasonably inferred from the collective agreement, must be taken to involve some balancing of interests and corresponding limitation on the discretion of the Company to demand personal and private communication records. The Company’s initial policy was introduced, defended and ultimately sustained by this Office on the critical basis that although it is an extraordinary invasion of personal information and privacy, it is justified in the extraordinary case of a serious accident or incident in the highly safety sensitive context of the operation of trains.
What emerges from the case of Conductor Thomas is an entirely different matter, bearing no relation to safety and obviously having no connection to any serious accident or incident. It would appear that the Company simply attempted to avail itself of private and personal communication data in the investigation of what it considered to be slow and inefficient production on the part of the conductor and his crew. Nothing in CROA&DR 3900, and in my view nothing in correct arbitral principle with respect to defining the scope of management’s rights would justify the extraordinary intrusion into an individual’s personal communication records to deal with an issue such as an employee’s productivity, a matter entirely unrelated to any safety sensitive concern stemming from a serious accident or incident.
It should be stressed that the principles developed in CROA&DR 3900 were developed on the basis of established rules. To a substantial degree this Office relied on the decision of the Privacy Commissioner in PIPEDA Case Summary No. 114 which sets out the elements of analysis to be examined to determine whether personal information such as telephone records may be collected. The first of four questions posited by the Commissioner is the following: “Is the measure demonstrably necessary to meet a specific need?” As is evident from the text of the award cited above, the circumstances of a serious accident or incident satisfy the reasonable requirement of a “specific need”. In my view, given the balancing of interests, it is not now open to the Company to expand the ambit of “specific need” to areas unrelated to health and safety and serious accidents or incidents related thereto, such as for example employee productivity or other purely economic interests. In my view an incursion into the personal and private information of employees for those purposes could only be justified by clear and unequivocal language agreed into the framework of a collective agreement, something which clearly has not occurred. There is, I think, no responsible basis to infer that management rights should be taken to implicitly extend to demand the production of employees’ personal communication records in cases other than those directly related to serious accidents or incidents and related health and safety concerns, in the context of a highly safety sensitive industry.
is an additional troubling dimension to the questions put to Conductor Thomas
during the course of the supplementary investigation of
Unfortunately, that limitation did not appear to register with the Company officer conducting the investigation of Mr. Thomas. He was specifically asked who he called at 17:26 on the day in question, and responded that the call was made to his wife. On repeated occasions the investigating officer asked him why he would have called his wife and what was the purpose of the call. The grievor provided no elaboration, simply he stating that he wanted to speak to his wife in explanation of what appears to have been a nine minute telephone call.
specific issue of Mr. Thomas’ discipline, if any, is obviously not before me, I
am compelled to agree with the Union that for the investigating officer to use
an individual’s personal and private communications records to then probe the
identity of persons with whom he may have communicated and the specific subject
of that communication is arguably offensive to general societal values, is
clearly contrary to the limitations spelled out by Mr. Wilson in his original
The Union next
addresses the case of Locomotive Engineer Bill Bryant of
The Union objects to a Company demand which, as in the case of Locomotive Engineer Bryant, would in effect allow the employer full scrutiny of the unredacted communication records in an employee’s personal telephone account. That information would include all of the numbers which he or she may have called and possibly numbers from which calls were received, as well as the name of any other individuals who may share the employee’s telephone account.
can see no legitimate basis for the Company to have that knowledge or demand
the production of such unredacted material. Indeed, the actions of the
investigating officer in the case of Mr. Bryant are squarely contrary to what I
take to have been the serious undertaking of the Company as reflected in the
letter of Mr. Wilson of
CROA&DR 3900, which was predicated
on the undertaking expressed by Mr. Wilson, was released on
Certain clarifications are obviously required. There is nothing in the collective agreement, or any law of which I am aware, which can prevent the Company from asking an employee to go online to his or her telephone account, should the employee agree to do so. However, this Office is not persuaded that an employee who declines to do so can legitimately be made the subject of discipline or of adverse inferences, where the information that would be revealed is entirely unprotected. Where a printout of an employee’s telephone records is provided, with telephone numbers and identities appropriately blacked out, an inappropriate invasion of privacy obviously does not occur. On that basis the award in CROA&DR 3900 found that it was not unreasonable for the Company to ask for redacted records and to draw adverse inferences from a refusal to provide them, in the case of a serious accident or incident. Those careful considerations, however, plainly do not come to bear in the situation involving Mr. Bryant. I am therefore compelled to find and declare that while the Company is entitled to ask an employee to go online to examine an unredacted electronic version of his or her telephone account, the employee’s refusal to do so cannot be used to draw inferences against him or her.
ground of complaint raised by the Union concerns what it characterizes as the
Company’s inappropriate recourse to discipline as a means of forcing employees
to provide their cell phone records. In that regard it advances the example of
Conductor David Louhuizen of
In responding to this incident the Company’s representatives suggest that Conductor Louhuizen was being investigated because he failed to report the locomotive engineer’s transgression until the end of the tour of duty, rather than having done so immediately at the time it occurred. It seems to be suggested that it was on that basis that he might have been held out of service, pending the investigation of what the employer would characterize as serious misconduct.
has some difficulty with the scenario as presented by the Company. Firstly,
there appears to have been no suggestion that the incident in question involved
any serious accident, near miss or other health and safety concern. The sole
purpose of the Company’s original investigation was to deal with the grievor’s
own report that his locomotive engineer had himself used a cell phone while on
duty. I must agree with counsel for the
This is obviously not a situation where the Company, in accordance with its stated policy, simply would have done nothing more than draw an adverse inference against the conductor based on his failure or refusal to produce telephone records. On the contrary, the Company appears to have adopted a position that he would continue to be punished by being denied gainful employment until he complied with the Company’s request. That, in my view, is plainly inconsistent with the workings of the Company’s policy as it was presented in this Office in CROA&DR 3900, and clearly contrary to the ambit of that award. The substance of what occurred to Conductor Louhuizen is clearly that he was suspended and would remain suspended until such time as he provided his telephone records. Indeed, he was returned to service when he finally complied, and not before. As should be evident from the award in CROA&DR 3900, the Company cannot legitimately resort to discipline as a means of forcing an employee to provide personal and confidential records normally protected by generally accepted principles of confidentiality.
This matter is therefore remitted to the parties for their review and the implementation of the findings and declarations made herein. Should there be any dispute as to those issues, the matter may be spoken to.