SHP 353

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

National Automobile Aerospace and Agricultural Implement Workers Union of Canada

GRIEVANCE RE S. TOSCANO

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

B. R. McDonagh President, System Local 101, Rail Division, CAW-TCA Canada

L. Carozza Vice-President, Atlantic Region, System Local 101, Rail Division, CAW-TCA Canada

 

 

There appeared on behalf of the Company:

M. E. Keiran Assistant Unit Manager Labour Relations, HHS

L. G. Winslow Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on September 4, 1991.

 

AWARD

This is the arbitration of a grievance against discharge. As the hearing the parties filed the following joint statement of facts and issue:

Dispute:

Dismissal of Carman S. Toscano, Coquitlam Car Shops, Port Coquitlam, B.C.

Joint Statement of Facts:

On May 31, 1991, Carman S. Toscano was dismissed from service for: "conduct incompatible with your employment and the revelation of your undesirable character as evidenced by your involvement with the possession of cocaine, high speed automobile chase with police, collision with police vehicles, incarceration from April 25 to April 29, 1991 and criminal charges of possession of a narcotic, criminal negligence in operation of a motor vehicle, mischief to property, hit and run, obstruction of a police officer and failing to stop for a police officer, April 25, 1991."

Joint Statement of Issue:

It is the position of the Union that: a) the Company has acted in an arbitrary, subjective and excessive manner with respect to the dismissal of Mr. Toscano. b) the Company has over stepped its authority with respect to the dismissal of Mr. Toscano.

The Union contends that the Company has not established responsibility in relation to Mr. Toscano's employment and is appealing the decision as per Rule 28.4 of Collective Agreement 52.1. Therefore, Carman S. Toscano should be reinstated to employment forthwith, without loss of seniority, without loss of benefits and reimbursed for all time lost as provided for in Collective Agreement 52.1.

The Company denies claim.

***

In April of 1991 the Company became aware that the grievor had been arrested and charged with a number of criminal offences, as related in the Joint Statement of Facts. The particulars of the allegations against Mr. Toscano were conveyed to the Company in some detail by a report of CP Police Investigator M.E. O'Reilly. Based on that report, as well as on certain newspaper reports, the Company was advised that Mr. Toscano was apprehended after a high speed chase during which he damaged two police cars before being forcibly detained. The reports given to the Company further alleged that during the course of the pursuit Mr. Toscano discarded a plastic bag which was found to contain cocaine residue. It is common ground that he is charged with six criminal offences, including possession of a narcotic, criminal negligence in the operation of a motor vehicle, hit and run and the obstruction of a police officer.

Following two separate investigations on May 6 and May 17, 1991, Mr. Toscano was notified on May 31, 1991 that he was discharged for the reasons quoted in the Joint Statement of Facts reproduced above. The position of the Union is that the conduct alleged against the grievor was, both at the time of his discharge and at the time of this arbitration, not proved in any civil or criminal proceeding and was categorically denied by the grievor. Secondly, it submits that in any event the occurrences alleged are not work related and should not be seen as justification for discipline by Mr. Toscano's employer.

A review of the investigations conducted by the Company confirms that certain of the conduct alleged against the grievor remains unproved, while parts of it are admitted. During the course of the first investigation the grievor gave the Company no information with respect to the circumstances surrounding the criminal charges against him. When asked why he was unable to report for duty on April 25 and 26 he responded that he had a problem with his leg for which he was then hospitalized. He refused to answer whether he was in fact incarcerated on those dates. However, during the course of the second investigation, conducted on May 17th, Mr. Toscano was more forthcoming. He then admitted that he was incarcerated until April 27th and was released on a $15,000 surety. He further related that the leg injury which he had earlier reported was in fact sustained during a physical altercation which he had had with the arresting officers. In answer to one question Mr. Toscano acknowledged that the incident of April 25 occurred "approximately" as related in the report filed by Investigator O'Reilly. However, Mr. Toscano denied that he was aware that he was being pursued by police, and stated that he thought someone else was chasing him in furtherance of a death threat by a former roommate. He specifically denies having thrown a plastic bag from his car or having been in possession of an illegal narcotic. When asked whether he had ever taken illegal drugs he stated that he had not done so willingly, although he suspected that he might have been given drugs without his knowledge by other persons. When asked if he would undergo a drug test conducted by the Company he declined, indicating that he would only consent to a drug test "... if the doctor were neutral" because "... things could be tampered with". Finally Mr. Toscano indicated that he would plead not guilty to the charges against him.

In the result, certain of the allegations contained in the discharge notice are established beyond controversy. Mr. Toscano was involved in a high speed automobile chase with police which included a collision with police vehicles and his forcible arrest. It is also clear that he was incarcerated from April 25 to April 29, causing him to be unavailable for work for reasons which were not fully disclosed to the Company until the second investigation. Lastly, it is common ground that all of the charges named in the notice of discharge are still pending against him.

It is not disputed that Mr. Toscano is employed in a safety sensitive position. As a carman, his duties involve the inspection of trains to ensure that they are fit for safe operation. While the safety sensitive nature of a carman's duties may not be as evident as that of an engineman or conductor, it is nevertheless significant. The Company remains entitled to the assurance that employees charged with the inspection of rolling stock immediately prior to its operation are fully alert and unimpeded by the use of drugs or alcohol.

What were the facts which the Company faced at the time of its investigation of Mr. Toscano? It was told by police sources that he was the subject of a police drug investigation and that, among other things, he had been charged with possession of cocaine following a high speed chase by police. It further became aware that Mr. Toscano concealed his incarceration from his employer, to the point of making partially misleading statements as to the reasons for his non-attendance at work, during the course of his first investigation In the circumstances, it had reason to be concerned, and reasonable grounds to require a drug test.

In the Arbitrator's view the Union is correct in the assertion of the principle that an employee should not be disciplined for conduct which is not work related and has no bearing on his or her employment relationship. I also accept that the criminal charges made against the grievor which he denies remain unproved before me in the absence of any direct evidence. In my view, however, those principles do not speak fully to the facts of this case. On the material before me I must draw the conclusion that Mr. Toscano knowingly concealed from the Company the nature of the charges against him, offered misleading statements as to the reasons for his inability to attend at work and declined to undergo a drug test which, in my view, was made in circumstances which gave the employer reasonable and probable cause to require such a test. The Arbitrator can attach no weight to the grievor's preference that a drug test be conducted by a "neutral doctor". Firstly, there is nothing in the evidence to suggest that the grievor had any reason to believe that a Company conducted test would involve any kind of tampering. Secondly, should the Company seek to rely on the results of such a test in support of a discharge it would bear the burden of proof to establish the regularity of the procedures followed and the accuracy of the results. For reasons elaborated in prior arbitral awards (see CROA 1703) when an employer in a safety sensitive industry has reasonable grounds to request that an employee undergo a drug test, a refusal on the part of the employee may be viewed as the basis for drawing inferences against the person who refuses. Moreover, in the Arbitrator's view it is not appropriate, as a general matter, to expect an employer such as the Company, with national operations and its own extensive medical staff and services, to negotiate a testing process acceptable to the individual employee on a case by case basis.

In the Arbitrator's view, if the grievor had been candid and forthcoming at all times with the Company the disciplinary result in the instant case might be very different. An admission on the part of Mr. Toscano as to the circumstances of his arrest, the link between his incarceration and his inability to attend at work and the true circumstances of his leg injury would have done much to maintain the bond of trust between himself and his employer. Similarly, agreeing to undergo a drug test conducted by the Company might have produced evidence conclusive of the innocence which he pleads. Instead, the grievor sought to conceal the facts from the Company until it was clear that police reports in its possession had fully disclosed them. While I must agree with the Union that all of the allegations in the notice of discharge to the grievor are not fully proved, just cause for Mr. Toscano's discharge is made out on the balance of probabilities. In the Arbitrator's view the employer was entitled to view with great gravity Mr. Toscano's attempts to mislead it as to the circumstances of his arrest and incarceration and his refusal in the face of criminal charges relating to the use of a hard drug, to submit himself to a company administered drug test. Additionally, the grievor's record does little to mitigate that conclusion. It stood at 30 demerits at the time of the culminating incident, and included discipline for two incidents of carelessness resulting in injury to the grievor and one of poor workmanship. Additionally, the grievor's attendance record was extremely poor in the period 1989 through 1991.

In all of the circumstances disclosed, the Arbitrator is satisfied that the conduct of Mr. Toscano surrounding the events relating to his arrest and incarceration sufficiently undermined the relationship of trust which the Company was entitled to expect from him. Additionally, the drug related nature of the charges, although not directly work related, were sufficient in my view to justly reasonable concern on the part of the Company as to the grievor's fitness for continued employment. In the circumstances, his refusal to undergo a Company drug test was such as to confirm the Company's view with respect to his continued employability.

For the foregoing reasons the Arbitrator finds that the Company did have just cause for the termination of Mr. Toscano's employment. The grievance is therefore dismissed.

DATED at Toronto this 20th day of September, 1991.

(sgd) M. G. Picher

Arbitrator