SHP 370
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CP RAIL
(the "Company")
-and-
CAW-TCA CANADA
RAIL DIVISION, LOCAL 101
(the "Union")
GRIEVANCE RE CARMEN R.L. OPDAHL
ARBITRATOR: Michel G. Picher
APPEARING FOR
THE COMPANY: K.E. Webb - Assistant Manager, Labour
Relations, HH-C, Vancouver
L.G. Winslow - Labour Relations Officer,
Montreal
APPEARING FOR
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.
AWARD
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:
Dispute
Dismissal of Carman R.L. Opdahl, Golden Car Shop, Golden,
B.C.
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
52.1.
- 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
discipline.
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
Arbitrator