SHP 363

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers

GRIEVANCE RE DISMISSAL OF BOILERMAKER M. DOUCET

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, C.C.R.S.U.

P. Watson System General Chairman, I.B.B.

J. Thériault Président-D'Atelier, I.B.B.

 

 

There appeared on behalf of the Company:

L. F. Caron System Labour Relations Officer

D. A. Watson System Labour Relations Officer

P. Beaupré Planning Manager, AMF

M. Vachon Mechanical Component Manager, AMF

 

A hearing in this matter was held in Montreal on June 8, 1992.

 

AWARD

This is the arbitration of a grievance against discharge for the alleged possession and use of cannabis on the Company's premises. The dispute and joint statement of issue filed by the parties at the hearing is as follows:

DISPUTE:

Appeal of 35 demerits assessed to the discipline record of Boilermaker M. Doucet of Montreal Shops for violation of Rule 26(a), on August 31, 1990, of the Rules and Regulations to be observed by all employees in the Motive Power and Car Shops, and his consequent discharge for accumulation of more than 60 demerits, on October 30, 1990.

JOINT STATEMENT OF ISSUE:

On August 31, 1990, at approximately 17:30 hours, during their coffee break, Mr. Doucet and Labourer D. Rajotte were found in the cab of locomotive #4728 at Pit #28 of the Montreal Shops' Motive Power Shop, by two Company Officers. Both Company Officers filed reports on September 5, 1990, stating that as they entered the cab they smelled a strong odour of hashish and discovered a burned match and blackened aluminum paper on top of the locomotive's refrigerator. One of the Company Officers also noticed that the aluminum paper smelled of hashish. Both Messrs. Doucet and Rajotte were removed from service and not allowed to continue the remainder of their shift.

The aluminum paper sample was sent for analysis to the Department of National Health and Welfare to determine the exact nature of the substance on the paper, and an investigation into Mr. Doucet's alleged violation of Rule 26(a) of the Company Rules on August 31, 1990 was conducted on October 1, 1990. After the result of the analysis report of the aluminum paper sent to Health and Welfare Canada was received by the Company, a subsequent investigation was held on October 16, 1990 in which the Company entered the result as evidence. The analysis report states:

"3. Que j'ai dûment analysé et examiné ladite substance et que j'ai constaté qu'elle contenait un STUPÉFIANT aux termes de la loi SUR LES STUPÉFIANTS à savoir: RÉSINE DE CANNABIS.

Mr. Doucet's record was assessed 35 demerits for violation of Rule 26(a) of the Company's Rules and Regulations to be observed by all Employees in the Motive Power and Car Shops, which states as follows:

RULE 26 GAMBLING - INTOXICANTS - NARCOTICS

(a) The use of intoxicants or narcotics by employees subject to duty, or their possession or use on duty, is prohibited.

The 35 demerits assessed, when added to the 50 demerits which were already on Mr. Doucet's discipline record, resulted in the accumulation of 85 demerits. Consequently, Mr. Doucet was discharged from the Company's service for accumulation of 60 demerits or more effective October 30, 1990.

The Brotherhood contends that Mr. Doucet was unjustly discharged because there is no evidence brought forth by the Company to connect him with any illegal drugs. The Brotherhood further contends that the Company violated Rule 28.3 of Agreement 12.33 by exceeding the time limits to assess discipline. As a result, the Brotherhood requests that Mr. Doucet be reinstated forthwith and made whole for any loss of earnings and benefits.

The Company has declined the Brotherhood's appeal.

***

The grievor has been employed by the Company since February of 1980, and worked as a boilermaker from March 7, 1984 until October 30, 1990 when he was discharged for the reasons related above.

On August 31, 1990, Mr. Doucet was assigned to work from 15:30 to 23:30 hours. His duties involved stripping foot boards from a locomotive located on Pit #29 of the motive power shop in the Company's Montreal shops. The evidence discloses that it is not uncommon for employees to take their coffee breaks inside the cabs of locomotives which are being worked on in the shop. On the day in question the first coffee break was scheduled for 17:30 hours. The grievor relates that at approximately 17:25 he met Mr. D. Rajotte, a classified labourer, at Pit #28, and the two agreed that they would take their coffee break together in the cab of locomotive 4728, which was stationed at that pit. It appears that Mr. Rajotte proceeded directly to the locomotive, while Mr. Doucet went to the shop canteen to purchase a soft drink. It is common ground that the canteen is situated near Pit #15, and it is estimated that the grievor's trip to and from the canteen would have consumed several minutes. Upon returning to the cab, Mr. Doucet sat on the floor while Mr. Rajotte occupied the engineer's seat. Some three minutes after the grievor reached the cab two supervisors entered and inquired what the employees were doing there. It appears that Mr. Rajotte then responded that they were simply taking their coffee break.

The account of the two supervisors, which the arbitrator accepts, is that there was a distinct odour of burned cannabis in the cab at the time. Supervisor Vachon found a piece of blackened tin foil, and a burnt match on the top of the refrigerator. As related above, the tin foil was later found to contain cannabis resin. Upon being pressed by the questions of the supervisors with respect to the smell in the cab, Mr. Rajotte responded: "We aren't the only ones who do that here. There are some beer cans that were thrown into the garbage near the washing pit by guys from the boiler shop."

The employees were then escorted into the office of Supervisor Beaupré. It appears that once they reached that location Mr. Rajotte asked if he could use the washroom, which he then entered, according to Mr. Beaupré "... for a very short moment." Mr. Beaupré then advised the two employees that in his view they were not fit to work, and directed them to leave for the balance of the shift. Mr. Doucet returned to work on the next scheduled working day, and worked without incident for the following two months, when he was discharged following a formal investigation.

Upon leaving the shop on August 31, Mr. Doucet immediately attended a medical clinic where he asked the attending physician, Dr. J. Poray-Wybranowski, to give him tests which would prove that he was then drug-free. His visit and request are confirmed in a letter of the physician tendered in evidence. According to Dr. Poray-Wybranowski's account, however, it was impossible to administer the blood and urine tests which the grievor wanted, because the technician was not on duty at the time and the doctor was unable to locate the appropriate specimen containers. The doctor then suggested to Mr. Doucet that he return to the laboratory on the Tuesday following the holiday weekend, some four days later. It is not disputed that Mr. Doucet did not do so, as he returned to his regular duties without further incident on the Tuesday following Labour Day.

In the instant case, which concerns a matter of discipline, the burden of proof is upon the Company. It must establish, on the balance of probabilities, that Mr. Doucet was in possession of or made use of a narcotic while on duty and on Company premises, as alleged, on August 31, 1990. The Union submits that the evidence falls shorts of establishing guilt on the part of Mr. Doucet. After careful review of the material submitted, the Arbitrator finds that position to be more compelling than the case advanced by the Company.

On the day in question Mr. Doucet was not seen using hashish, nor was he observed to be in possession of it. At most, he was found in a location where an odour of hashish could be detected, and where a piece of aluminum foil with traces of cannabis resin was found. If the grievor had been the sole occupant of that location, the inferences which might be drawn would, in the Arbitrator's view, be arguably stronger in favour of the Company. The evidence is no so compelling, however. As noted above, the facts disclose that another employee, Mr. Rajotte, was alone in the cab of the locomotive for a number of minutes prior to Mr. Doucet's arrival. There is, consequently, some real question as to what might have transpired during the time that Mr. Doucet proceeded to the canteen to purchase a soft drink, and before he returned to the cab of the locomotive for the balance of his coffee break.

Two further pieces of evidence raise questions about the grievor's guilt. Firstly, Mr. Rajotte made a response to the two supervisors which, in the Arbitrator's view, is susceptible of interpretation as an admission of guilt on his part. For Mr. Rajotte to state that other employees are involved in similar conduct can, in my view, be taken as an oblique admission of some wrongdoing on his part. Secondly, as noted by the Union, Mr. Rajotte appears not to have grieved his own discharge. On the whole, the evidence could support a reasonable inference that Mr. Rajotte, and not Mr. Doucet, engaged in the use or consumption of hashish at the time and place in question.

Further support for the grievor's case can be drawn from the fact that he proceeded to a medical clinic immediately following his removal from service. The certificate of the attending physician confirms his wish to be immediately tested, by means of urine and blood tests, to prove his innocence of any consumption of drugs. The fact that for practical reasons the test could not then be administered cannot, in my view, be held against the grievor. It is important to appreciate that it was late on the Friday preceding the long weekend of the Labour Day holiday. The fact that Mr. Doucet did not pursue his attempt to be tested any further several days later is understandable, in the circumstances. Given that he was returned to work without apparent incident on the next working day, and heard nothing adverse from the Company before the investigation which was not conducted until early October, I find it difficult to conclude that the grievor's actions were unreasonable in the circumstances.

All of the evidence upon which the Company relies to support its decision to terminate Mr. Doucet is circumstantial. There is no direct evidence of any witness having seen Mr. Doucet in any way involved with the use or possession of hashish, nor is there anything in the nature of an admission on his part. The approach to be taken in respect of the weight to be given to circumstantial evidence was expressed in the following terms in CROA 1776:

As a general matter circumstantial evidence is admissible in proceedings governed by the rules of evidence. It is well established, however, that where the only evidence against an accused person is circumstantial, it can be relied upon only to the extent that such evidence is consistent with a conclusion of guilt on the part of the accused and is inconsistent with any other conclusion. In the Arbitrator's view, given the gravity of the allegation against the grievor, even though this is not a criminal proceeding, that evidentiary rule is an appropriate principle to apply in a case of this kind.

The evidence in the case before the Arbitrator is as consistent with Mr. Doucet being entirely innocent of involvement with hashish, as it is with the possibility of guilt on his part. While the employer may have understandable suspicions with respect to Mr. Doucet's activities, it cannot be denied that the outward circumstances in which he found himself on August 31, 1990, are susceptible of an alternative interpretation. While there is the possibility that he was involved in the consumption of cannabis with Mr. Rajotte, it is equally possible that the grievor's fellow employee was the possessor and sole user of the illicit drug in the circumstances disclosed. That possibility becomes the more compelling in light of the evidence which establishes that Mr. Rajotte was alone in the cab of the locomotive for a period of minutes, during which time he could have consumed hashish alone. In addition, the subsequent acts of the grievor, including the attempt to obtain an immediate drug test, are generally consistent with innocence on his part. In these circumstances the Arbitrator cannot find that the circumstantial evidence, standing alone, is sufficient to establish the Company's case. I cannot, therefore, conclude, on the balance of probabilities, that Mr. Doucet was either in possession of or made use of hashish on the Company's premises on August 31, 1990, as alleged. In the circumstances, I need not deal with the procedural objections raised by the Union with respect to the time limits of the investigation.

For the foregoing reasons the grievance must be allowed. The 35 demerits assessed against Mr. Doucet shall be excised from his record, forthwith, and he shall be reinstated into his employment, without loss of seniority and with compensation for all wages and benefits lost. His discipline record shall be restored to the level of 50 demerits at the time of his reinstatement. I retain jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this award.

DATED THIS 17TH DAY OF JUNE 1992.

(sgd) M. G. Picher

Arbitrator