SHP 370




(the "Company")




(the "Union")


ARBITRATOR: Michel G. Picher


THE COMPANY: K.E. Webb - Assistant Manager, Labour

Relations, HH-C, Vancouver

L.G. Winslow - Labour Relations Officer,



THE UNION: B.R. McDonagh - President, Local 101

B. Chalvin - Vice-President, Atlantic

Region, Local 101

A hearing in this matter was held in Montreal on October 26, 1992.


This is the arbitration of a grievance against the discharge of an

employee convicted of possession and trafficking in narcotics. The

Dispute, Joint Statement of Facts and Joint Statement of Issues filed

at the hearing are as follows:


Dismissal of Carman R.L. Opdahl, Golden Car Shop, Golden,


Joint Statement of Facts

On July 8, 1991 Carman R.L. Opdahl 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 and trafficking of

narcotics (marijuana) and your subsequent

criminal charges contrary to the Narcotics

Control Act, Golden, B.C.

Joint Statement of Issue

It is the position of the Union that:

- the Company has acted in an arbitrary, subjective

and excessive manner with respect to the dismissal

of Mr. Opdahl.

- the Company has over stepped its authority with

respect to the dismissal of Mr. Opdahl.

- the Company has not established responsibilty in

relation to Mr. Opdahl's employment and is appealing

the decision as per rule 28.4 of Collective Agreement


- Therefore, Carman R.L. Opdahl 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 the Union's contentions and declines the

union's claims.

At the time of his termination the grievor had been in permanent

service with the Company for approximately 10 years. He had been

assigned to the Company's mechanical shops at Revelstoke in Golden,

British Columbia, having worked as a labourer, carman-trainee and,

since 1987, as a qualified carman.

On or about June 11, 1991 it became known to the Company that the

grievor was absent from work to attend criminal proceedings relating

to charges of possession and trafficking in marijuana, in

contravention of section 4.1 of the Narcotic Control Act. Although

Mr. Opdahl pleaded not guilty on June 11, 1991, he was subsequently

convicted on October 30, 1991, having changed his plea to guilty on a

single charge of possession for the purposes of trafficking, and was

sentenced to a term in prison.

The Union submits that the Company was not justified in removing the

grievor from service during the period between his being charged and

his conviction. Additionally, it submits that his involvement with

drug trafficking is not work related and should not be the subject of


In the Arbitrator's view the governing principles insofar as the

issue of the removal from service of Mr. Opdahl pending his

conviction, were expressed in CROA 1703 in the following terms:

In some cases, however, off-duty conduct that is the subject of a

criminal charge may seriously affect the legitimate interests of

the employer. The operative principle was well summarized by the

majority of the board of arbitration in Re Ontario Jockey Club and

Mutuel Employees Association (1977) 17 L.A.C. (2d) 176 (Kennedy)

at p. 178:

... The better opinion would appear to be that the

employer's right to suspend where an employee has been

charged with a criminal offence must be assessed in the light

of a balancing of interests between employer and employee.

The employee, of course, has a legitimate interest in being

considered innocent until he has been proven guilty. If,

however, the alleged offence is so related to the employment

relationship that the continued employment of the employee

would present a serious and immediate risk to the legitimate

concerns of the employer as to its financial integrity,

security and safety of its property and other employees as

well as its public reputation, then indefinite suspension

until the charges have been disposed of would appear to be

justified. In determining the nature of the legitimate

interests of the employer, it is necessary to look at the

nature of the offence, the work being performed by the

employee, and the nature of the employer's business..."

The grievor is a carman. He is, among other things, responsible for

the inspection of trains, to ensure that cars and related equipment

are in safe operating condition. His work, and that of his fellow

employees, is conducted in a safety sensitive environment, in and

around moving equipment and in locations which do not involve a high

degree of direct supervision.

Trafficking in narcotics is justly seen as a serious threat to social

and legal order. As a common carrier with a high public profile, the

Company is entitled to take such reasonable steps and precautions as

are necessary to ensure its safe operations. This, in the

Arbitrator's view, would extend to excluding from the workplace

persons charged with or known to be involved in the trafficking of

narcotics. As was noted in CROA 1703, in a safety sensitive industry

in the field of transportation, an employer may have a legitimate

concern as to whether persons involved in the trafficking of

narcotics will be prompted by the profit motive to pursue their

illegal activities in the workplace.

The Arbitrator accepts the authorities cited by the Union to the

effect that the employer is not to be the custodian of an employee's

character. However, where an employer can establish a meaningful

business interest to be protected, and where the official conduct of

an employee may be such as to risk the safety of the Company's

operations or the integrity of its reputation, the balancing of the

interests of the employer and of the emoployee may tip in the

direction of justifying the removal of the employee from the

workplace, even pending the resolution of as yet unproved criminal

charges. In the instant case, in the arbitrator's view, it was

reasonable for the Company to have a legitimate concern about the

risk inherent in an active drug trafficker moving about its property,

in a largely unsupervised setting, in contact with both operating and

non-operating employees on an ongoing basis. Moreover, it is far from

clear, as the Company argues, that other employees are willing to

work in a safety sensitive environment alongside an employee charged

with or known to be materially involved in the drug culture through

the sale of narcotics.

On the whole, I am satisfied that the suspension of the grievor was

justified because of the real risk to the legitimate business

interests of the Company stemming from the charges against him.

Moreover, given the seriosness of the charge, and of Mr. Opdahl's

eventual conviction for trafficking in narcotics, I am satisfied that

the decision to discharge the grievor was justified in the

circumstances. For the foregoing reasons, the grievance is dismissed.

DATED at Toronto, this 3rd day of November, 1992.

Michel G. Picher