SHP - 378
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA, LOCAL 100
GRIEVANCE RE DISCHARGE OF CARMEN APPRENTICES TODD RICHARD DALE AND PAUL JOSEPH JONES - CALDER YARD
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
Tom Wood – System General Chairman
J. R. Moore Gough – General Chairman, Great Lakes Region
APPEARING FOR THE COMPANY:
Greg Blundell – Manager Labour Relations, Edmonton
Ken Hall – Labour Relations Officer, Edmonton
David Edison – Assistant Chief, Car Equipment, Montreal
Denis Laurendeau – System Labour Relations Officer, Montreal
A hearing in this matter was held in Montreal on February 24, 1993.
This is the arbitration of two grievances against discharge for the use of a narcotic while on duty.
The ex parte statement of dispute and statement of issue filed by the Company briefly summarizes the allegations and issues. It reads as follows:
Appeal of the discharge of Carman Apprentices Todd Richard Allen and Paul Joseph Jones of Calder Car Equipment effective 07 May 1992 for "use of a Narcotic while on duty which is in violation of CN Safety Rule 1.1 and Rule 26 of CN Rules and Regulations to be observed by all Motive Power and Car Shop employees."
COMPANY STATEMENT OF ISSUE:
On 30 April 1992 the grievors were working the aftemoon shift at the Calder Car Shop. At approximately 2045 hours a CN Policeman observed the grievors smoking a cigarette outside and west of the Car Shop. In his report, the Policeman stated "During this incident I detected a strong smell of cannabis in the air." The Company contends that the grievors were in possession of and using cannabis on 30 April 1992.
The Union contends that the grievors were not using cannabis on 30 April 1992. Included with the Union’s grievance, which was received by the Company on 30 June 1992, was a toxicology report that stated that cannabinoids were not detected in a urine sample allegedly provided by Mr. Dale.
The Union also contends that the grievors did not receive a fair and impartial investigation because the grievors were not permitted to question witnesses.
The Union seeks that the grievors be retumed to service and that they be made whole for all lost wages and benefits.
The Company has denied the Union’s appeal.
The principal evidence of the Company is the written statement of CN Police special agent R.G. Bohush, dated April 30, 1992. In that statement he relates that on April 30, 1992 he undertook surveillance of a portion of the yard at Edmonton, on the west side of the Car Shop. He relates that at 2045 hours he observed Mr. Dale and Mr. Jones walking in a southerly direction, and then westerly, in an area known as the "parts alley". He relates that in a remote and concealed location in the parts alley, he observed Mr. Dale and Mr. Jones smoking marijuana. According to his statement, Mr. Jones lit the cigarette with some difficulty because of the wind, took two puffs of it himself and passed it to Mr. Dale who then inhaled from it. Mr. Bohush relates that, having smelled the odour of cannabis, he emerged from his place of concealment and apprehended the two individuals.
According to his statement, as he approached the grievors Mr. Dale threw the cigarette over his shoulder, onto the area of the tracks to the south of him. He states that he took Mr. Jones to the area where Mr. Dale had thrown the cigarette, and that Mr. Jones then attempted to remove another cigarette from his pocket and drop it onto the ground, in what special agent Bohush characterized as an attempt to bury it with his foot. He relates that he seized that cigarette, which he found to contain a green material he states he recognized as cannabis, and shortly thereafter, found the cigarette which the two had been smoking, smouldering on the ground. According to special agent Bohush, the grievors were then taken to their lockers, where searches were conducted. The agent relates that in Mr. Dale’s locker he found a plastic bag containing a small amount of cannabis. This, he states, he discovered in the right front pocket of a pair of jeans in the locker, along with a piece 7 3 of rolling paper. The two cigarettes secured by special agent Bohush, as well as the plastic bag were subsequently analyzed and confirmed to be cannabis, a prohibited narcotic.
An investigation of each of the grievors’ actions was convened by the Company at the Calder Yard complex main office on May 7, 1992. Both employees denied having consumed marijuana, or having possessed it at the time in question. According to their statements, they went to the parts alley to smoke cigarettes, and each of them was smoking an Export A Light when they were apprehended by special agent Bohush. Although the written statement of special agent Bohush was present and available to the grievors and their Union representative, the employees declined to answer a number of questions arising out of the special agent’s report, apparently on the advice of their Union representative. The Union officer, Mr. R.W. Webber appears to have been of the curious view that the grievors could not be required to answer any question unless it involved a "yes" or a "no" answer, and could not be asked any question arising from information in a hearsay document. As a result the statement of the two employees contains a number of refusals to answer questions or answer such as "no comment". Both grievors deny having possessed or consumed marijuana in the parts alley at the time they were observed by Mr. Bohush, and Mr. Dale likewise denies the finding of cannabis in a plastic bag in his locker.
The grievor’s were both criminally charged with having possessed cannabis marijuana, contrary to section 3(1) of the Narcotic Control Act. They were tried and acquitted at Edmonton on September 4, 1992. The arbitrator has read the full transcript of the criminal proceedings. It is clear from that document that the count against Mr. Dale was dismissed solely on the basis of how the exhibits of marijuana were processed. The remaining count against Mr. Jones was dismissed because of a number of technicalities arising from the evidence, including certain inconsistencies in the testimony of special agent Bohush before the criminal court. These include, for example, the fact that Mr. Bohush’s initial report estimated the distance between himself and the grievors, during the time of his observations of them, to be 25 feet, when in fact it was 125 feet. There also appears to have been some uncertainty in the mind of the Court with respect to the state of the marijuana cigarette which was allegedly dropped by Mr. Jones in an attempt to crush it into the ballast. The Court appeared to be in doubt because of the undamaged state of the cigarette, notwithstanding that agent Bohush stated that he prevented Mr. Jones from twisting his foot over it.
The standard of proof in this arbitration is that which applies in any civil proceeding. It is incumbent upon the Company to establish, on the balance of probabilities, that the grievors possessed and used marijuana during their tour of duty on April 30, 1992. The burden of proof before this tribunal is different from that which applies in criminal proceedings, where the Crown must establish an offence beyond a reasonable doubt. Before the arbitrator there is no direct evidence in the form of testimony either from Company officers, or from the grievors. As is occasionally done in the railway industry, the parties proceeded to the hearing, and to the argument of their respective positions, on the basis of the statements of the grievors recorded in their investigation conducted by the Company, as well as the written statement of special agent Bohush and the transcript of the evidence adduced at the criminal trial.
The Union’s representative submits that the Company has not proved its case, to the extent that it relies entirely on documentary hearsay evidence at arbitration. It appears to the arbitrator that that submission would be compelling if direct evidence, in the form of the testimony of the grievors, had been presented at the hearing. In fact, however, neither party presented any direct evidence, and the entirety of the material before the arbitrator is in a documentary form. Clearly, under the Canada Labour Code, a board of arbitration is entitled to admit such evidence, whether or not it might be receivable in a court of law. The case must be resolved on the documentary evidence presented, and in that respect the Company is in the same position as the Union. I cannot, in these circumstances, support the Union’s claim that no prima facie case is made out against the grievors.
On the whole of the record, I am satisfied, on the balance of probabilities, that the grievors were in possession of marijuana and made use of it during their tour of duty on April 30, 1992. Firstly, although there was some technical irregularity with respect to the marking and custody of the exhibits for the purposes of the criminal prosecution, there is little substantial doubt that the two cigarettes in question, and the plastic bag did contain marijuana. During the course of their evidence, the grievors gave no explanation as to why they were some 400 feet away from the doors to the car shop when they were found smoking. It does not appear substantially disputed that employees working in the car shop generally step outside the doors to have a cigarette, and would not normally go to the distant and isolated location where the two grievors were apprehended by special agent Bohush. In the arbitrator’s view, it is more probable, and consistent with the observations related by Mr. Bohush, that the grievors proceeded to the place of concealment where they were observed, for the purpose of smoking marijuana during their tour of duty. The alternative possibility, that they would have been deliberately "framed" by special agent Bohush is, in the arbitrator’s view, highly implausible, and was certainly not a conclusion entertained or expressed by the criminal court.
Having regard to the statements filed in evidence by both sides, the arbitrator is satisfied, on the balance of probabilities, that Mr. Dale and Mr. Jones did possess and consume marijuana while on duty, as alleged. Nor can the arbitrator sustain the objection taken by the Union to the fact that the Union was not given the opportunity to cross-examine special agent Bohush during the course of the Company’s investigation. Rule 28 of the collective agreement provides, in part, as follows:
28.1 Except as otherwise provided herein, no employee shall be disciplined or discharged until he has had a fair and impartial investigation and his responsibility established. When an employee is held out of service pending such investigation, the investigation shall not be unduly delayed.
28.2 Except as otherwise provided in this Rule, when an investigation is to be held, the employee will be given at least one day’s notice of the investigation and will be notified of the time, place and subject matter of such investigation. This shall not be construed to mean that the proper officer of the Company, who may be on the ground when the cause for such investigation occurs, shall be prevented from holding an immediate investigation.
When employees are required to make statements on matters affecting the Agreement, Company working rules or compensation, a duly authorized representative of the employee shall be present except that when employees are required to make statements on matters not affecting the Agreement, Company working rules or compensation, the employee may have a fellow employee or an accredited representative of the Union present.
Copies of statements, stenographic reports and all other evidence taken shall, if requested be furnished to the employee and, if present, to his authorized representative.
It is well settled that the above provision does not contain a right of cross-examination. This was determined in a decision by Arbitrator Weatherill in SHP 254, an arbitration between the Canadian National Railway Company and the Sheet Metal Workers’ International Association dated November 24, 1988. At page 6 of that award, Mr. Weatherill made the following comments:
It was argued that the company was in violation of Rule 28 of the collective agreement, in that at the investigation of this matter, the grievor was not provided with an opportunity to cross-examine the persons who had made reports on the incidents described. It is true that the opportunity was not provided. The grievor was shown the reports and asked for his comments. I do not consider that Article 28 reguires more. The investigation is not a trial. It should provide the employee with an opportunity to give his side of a matter, but it need not involve (although it may do so), the cross-examining of others by the grievor or his representative. Such reports, it may be noted, do not have any authoritative effect simply by virtue of their being presented at the investigation, and if, following an investigation, discipline is imposed and a grievance then filed, the onus will of course be on the employer to make out its case against the grievor. The persons in question did give evidence at the hearing of this matter, and they were of course subject to cross-examination. In my view, there was no violation of Rule 28.
There was, in the arbitrator’s view, nothing irregular in the manner in which the Company conducted the disciplinary investigation. For the reasons touched upon above, given that no direct evidence was adduced by the Union, and that both parties were content to proceed with documentary evidence, the material before the arbitrator must be evaluated on its relative merits. While the circumstances might have been different had the grievors provided sworn viva voce evidence at the arbitration in contradiction of the hearsay evidence filed by the Company, that did not transpire. It is incumbent on employees charged with an accusation as serious as the one in this case to give a full and credible explanation of their actions. In the instant case, they have not. For the foregoing reasons the arbitrator has found that the Company has established, on the balance of probabilities, that the grievors were in possession of a prohibited narcotic, which they consumed, during their tour of duty on April 30, 1992.
In my view, the penalty of discharge is appropriate, given the seriousness of the conduct involved. The use of alcohol or a narcotic while at work in a safety sensitive position is plainly incompatible with an employee’s obligation to his or her employer. The grievors knew, or reasonably should have known, that such conduct would attract the most serious of disciplinary sanctions. Having further regard to the relative short service of the employees concemed, and to their prior disciplinary record, the arbitrator can see no substantial basis for mitigating the penalty assessed.
For the foregoing reasons, the grievances must be dismissed.
DATED at Toronto this 8th day of March 1993.
(signed) MICHEL G. PICHER