SHP - 422

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

(the "Company")

AND

NATIONAL, AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101

(the "Union")

GRIEVANCE RE CARMAN V. GAUTHIER

 

SOLE ARBITRATOR: Michel G. Picher

 

APPEARING FOR THE UNION:

Brian R. McDonagh Ė National Representative

Ron Laughlin Ė Vice-President, Local 101

Victor Gauthier Ė Grievor

APPEARING FOR THE COMPANY:

A.Y. de Montigny Ė Labour Relations Officer

 

A hearing in this matter was held in Toronto on September 30, 1996

 

AWARD

This arbitration concerns the appeal against discharge by Carman Victor Gauthier. Mr. Gauthier was advised by notice dated December 9, 1992 that he was dismissed from Company service following his conviction for the possession of narcotics for the purpose of trafficking. The dispute and joint statement of fact and issue filed at the hearing reads as follows:

DISPUTE:

Dismissal of Carman V. Gauthier, Toronto Car Shop, Ontario.

JOINT STATEMENT OF FACT:

On December 10, 1992 Carman Victor Gauthier was dismissed from service for:

Conduct unbecoming an employee of CP Rail as a result of being charged and convicted of having narcotics in his possession for the purpose of trafficking.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that:

Therefore, Carman V. Gauthier should be reinstated forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any moneys owing.

The Company denies the Unionís contentions and claim.

[page 2]

The facts pertinent to the grievance are not in dispute. The grievor is a long-service employee, having been hired in June of 1971 as a carman helper; he held the rank of carman from October of 1973 and occupied that position at the Toronto car shop at the time of his dismissal.

On October 1 and October 7, 1991, the grievor engaged in the sale of small quantities of marijuana and hashish to a police informer. Upon the entering of a guilty plea, Mr. Gauthier was convicted on both counts, on September 9, 1992. He was sentenced to 60 days concurrently for both offences, to be served intermittently on weekends, coupled with a concurrent probation period of one year.

The Company learned of the grievorís conviction on November 20, 1992 and, subsequently, convened a disciplinary investigation into the events leading to his conviction. Upon the conclusion of the investigation, the Company determined that the grievorís activities relating to the trafficking in narcotics were incompatible with his employment in a safety-sensitive industry. It also considered the fact that he had been previously dismissed, on July 20, 1978, for consuming alcohol while on duty, although that dismissal was subsequently rescinded on compassionate grounds on November 4, 1979. On the whole, the employer formed the view that the activities and conviction of Mr. Gauthier justified the termination of his employment.

[page 3]

The parties before the arbitrator do not dispute that a conviction for trafficking in narcotics is a serious offence, which would attract the most severe of disciplinary consequences. The sole issue is whether, in the circumstances of this case, there are mitigating factors which would justify a substitution or reduction of penalty. On behalf of the grievor, the Union stresses that while serving his sentence, Mr. Gauthier attended a drug and alcohol program sponsored by the correctional institute and that he has long since ceased to be involved in the use of prohibited narcotics. The grievorís completion of the "Concerns Canada" program is confirmed by a letter from the programís director dated February 15, 1993. The Union also stresses that the grievorís disciplinary record was clear at the time of his discharge, and notes that he had a very positive reference from another employer by whom he was employed, until recently, following his termination. Lastly, the Union argues that the arbitrator should bear in mind that the activity which lead to the grievorís discharge was not work related, and arose during his off-duty time.

The Company advances a very different view. It stresses that as a common carrier in a safety-sensitive industry, it must have substantial concern for the involvement of its employees in the drug culture and, most particularly, the criminal activity of drug trafficking. The Companyís representative submits that when the grievorís conviction and incarceration are taken into account, coupled with the record of his prior discharge for the consumption of alcohol while on duty, amply justify the Employerís decision to terminate his services.

[page 4]

The arbitrator is compelled to agree with the Company. Boards of Arbitration in the railway industry in Canada have had a number of opportunities to consider the interests and concerns which come to bear in the discipline of an employee found to have been actively involved in the trafficking of narcotics (See, e.g. CROA 2038 and CROA 2296). In Shopcraft case 370, a carman at Golden, B.C. was discharged following his conviction for the possession of marijuana for the purposes of trafficking. Sustaining the discharge of the employee in that case, the arbitrator made the following comments:

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 narcots 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 Arbitratorís 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 employeeís 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 Companyís operations or the integrity of its reputation, the balancing of the interests of the employer and of the employee 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 arbitratorís 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.

While in the instant case, I have little reason to doubt the assertion of the grievor that he has changed his life, and is no longer involved in the use or sale of drugs, having regard to the gravity of the grievorís conviction for his involvement in the trafficking of narcotics, I am of the view that the Company should not be placed at risk by being required to reinstate an individual whose prior criminal activities are so contrary to the interests of an employer with the safety-sensitive concerns of a railway. Moreover, while Mr. Gauthier seeks to minimize the seriousness of his trafficking endeavours, the fact that the criminal court saw fit to order his incarceration rather than a suspended sentence, as might have occurred had his offence been seen as minor or technical, furthers the view that this is not a case for the substitution of penalty. While, on the whole, I would not assign significant weight to the grievorís prior discharge, some 18 years ago for an alcohol-related offence, I must conclude that his conviction and incarceration for trafficking in narcotics does justify the termination of his employment with the railway.

For all of the foregoing reasons, the grievance is dismissed.

DATED at Toronto this 9th day of October, 1996.

(Signed) MICHEL G. PICHER

ARBITRATOR