BETWEEN

(the "Company")

AND

(the "Union")

Sole Arbitrator: Michel G. Picher

A hearing in this matter was held in Toronto on September 5 and in Montreal on September 18, 1997.

The Union grieves the Company’s adoption of a comprehensive policy in relation to workplace problems related to alcohol and drugs, including a program for the drug and alcohol testing of employees in certain defined circumstances. The Union’s objection to the adoption of the Company’s policy to two-fold. Firstly, the Union asserts that the Company was without authority to proceed to the promulgation of a policy on drugs and alcohol without first discussing the matter within the context of the Master Joint Committee on Safety and Health established under rule 35 of the collective agreement. Secondly, and in the alternative, the Union asserts that the policy, or parts of the policy, are unreasonable, beyond the prerogatives of the employer and in violation of the provisions of the collective agreement. The parties are agreed that this preliminary award should deal only with the first basis of challenge advanced by the Union, namely that the Company violated the collective agreement by failing to first bring the matter of its drug and alcohol policy to the Master Joint Committee on Safety and Health, as provided under rule 35. Should the Union be successful on that objection, the grievance would succeed to the extent that the Company would be compelled to follow the rule 35 process. Should it not succeed, the hearing is to be reconvened to deal with the Union’s alternative allegation that the policy is unreasonable, discriminatory and in violation of the terms of the collective agreement.

The Union’s position is generally related in its ex parte statement of issue which reads as follows:

The Union represents shopcraft employees and carmen employed by the Company, whose terms and conditions of employment have been negotiated under collective agreements 12.35. Rule 35 of the collective agreement, which is entitled "Safety and Health" reads as follows:

The rule, as reproduced above, is new to the collective agreement. It emerged from language tabled by the Union before Conciliation Commissioner H. Allan Hope, in January of 1995, during the negotiation of the current collective agreement. It should be noted that the master committee is a deliberative body established at the national level, and is distinct and separate from the local safety and health committees established by the Company and Union at its various locations in Canada, in conformity with the requirements of section 135(1) of Part II of the Canada Labour Code.

The Union’s position in this matter is simple and straightforward. It submits that policies which concern drugs and alcohol in the workplace, and matters such as drug testing, relate generally to workplace health and safety. As such, its counsel submits that the Company is not at liberty to adopt a policy concerning drugs and alcohol, including policies or programs relating to drug or alcohol testing, without first giving the master committee the opportunity to have input and make recommendations, and in good faith attempting to reach agreement within the committee for the implementation of programs under the policies, as contemplated in sub-paragraph (b) of rule 35.1 of the collective agreement.

Counsel for the Company submits that there is a latent ambiguity in the very concept of "safety and health", and the provisions of rule 35 as they relate to the mandate of the master committee, an ambiguity which he submits is reflected in the bargaining history in relation to the rule, and the positions and statements made by the Union itself during the course of negotiating this provision. He argues that the understanding between the parties at all times prior to the filing of the instant grievance is that the Master Joint Committee on Safety and Health, and rule 35 generally, concern themselves with traditional workplace health and safety issues, of the sort contemplated under section 125 of Part II of the Canada Labour Code, which relates to specific issues going to the physical safety of the workplace, including workplace tools, equipment, methods of work and a host of well recognized safety and environmental factors. He draws to the Arbitrator’s attention the provisions of section 125, as relates to the obligations of an employer which read, in part, as follows:

The Company submits that in collective bargaining in the railway industry generally there has been a clear line of separation between traditional issues of workplace health and safety, on the one hand, and the separate question of company or company/union initiatives to deal with alcoholism, drug abuse and related problems in the workplace. It submits that there has been a development of elaborate employee assistance plans, established and administered separately from the health and safety committees established under Part II of the Canada Labour Code. By way of example, it points to the special agreement negotiated with some five unions, albeit not the instant union, dealing comprehensively with the establishment of what was initially referred to as the Employee Assistance Program (EAP), now known as the Employee and Family Assistance Program (EFAP). The appendices to the agreement include provisions which have come to be known as the "Rule G By-Pass Agreements" fashioned to allow for the mitigation of consequences for employees in violation of drug and alcohol rules, in certain specified conditions. The Company stresses that these arrangements have generally evolved outside and apart from the activities of joint health and safety committees.

It is not disputed that the Company has, for many years, developed policies in relation to alcohol and drug abuse. It first issued a "Management Guide Bulletin" subtitled "Policy and Authority on Problem Drinking & Alcoholism" on December 1, 1971. The thrust of that document was to recognize alcoholism as an illness, to encourage afflicted employees to voluntarily seek assistance and to train managers and supervisors to recognize the problem employees and to direct them to appropriate Company medical officer.

The Company’s policy has since been up-dated a number of times. In 1990 it introduced a separate policy entitled "Drug Free Work Place" which required, among other things, drug testing of all applicants to a safety sensitive position, as well as "other required drug testing" in compliance with general law. Further, in 1990, under bulletin 6.06 the Company issued an amended policy concerning the Employee Assistance Program, part of which was to recognize the need to deal with drug abuse, insofar as possible, within the context of the overall EAP policy. The elaboration of that policy is articulated, in a point form, within the Human Resources manual of the Company issued in September of 1995.

The policy which is the subject of this grievance issued effective March 15, 1997 after a process of consultation which included the unions representing the Company’s employees. The text of the policy is introduced by Company President and CEO, Mr. Paul Tellier, in the following terms:

The policy is related in a seventy-two page booklet, fully describing the policy, the guidelines and a series of questions and answers was printed in both French and English and distributed to all employees, whether unionized, non-scheduled or management.

The Company notes that the Union’s grievance, first filed on March 27, 1997 in the form of a letter from Director of Transportation, Mr. Gary Fane, did not specifically cite any violation of rule 35. It stresses that only after a request in writing for particulars did the Union, by letter dated May 13, 1997, over the signature of Mr. J.R. Moore-Gough, President of Local 100, specify that a breach of rule 35, among other things, was being alleged.

The issue to be determined is whether the Company’s policy on workplace alcohol and drug problems, and its related programs, constitute a policy and programs within the meaning of rule 35 governing the Master Joint Committee on Safety and Health. A related issue is whether, if the answer to the first question is in the affirmative, the Union’s conduct is, as the Company asserts, such as to justify an estoppel in the circumstances.

At the hearing the Arbitrator reserved on the Union’s objection to the introduction of any extrinsic evidence to interpret the meaning and scope of rule 35. Its position is that the language of the provision is clear and unequivocal, and that there should be no resort to such evidence to resolve a dispute as to its interpretation and application. Upon hearing the evidence of the Company, however, the Arbitrator is of the view that the evidence does disclose a latent ambiguity in the very scope of what the parties intended by the phrases "Safety and Health policies" and "Safety and Health programs" as they appear in rule 35.1(b).

In 1991 the Union went to the bargaining table with the Company with a number of demands. Demand number 36 proposed a new rule in the collective agreement to govern health and safety. Among the demands under that heading were the appointment of a full time union health and safety representative and the establishment of joint health and safety committees, as well as a master committee. Among the proposed duties of the master committee, as it was then envisioned, was the establishment of training programs for local joint committees "… so they may perform their functions satisfactorily, … they will receive specialized training appropriate to the operations at their respective work places." The master committee was also to develop and recommend guidelines and training modules on such matters as Part II of the Canada Labour Code, blue flags, locking out, confined spaces, ergonomics, dangerous commodities, emergency wrecking and shop mobile equipment training.

Significantly, the 1991 bargaining proposals of the Union also addressed the issue of alcohol and drugs in the workplace. These were dealt with under a separate heading, item number 41 entitled "Substance Abuse Program". Under that heading the Union proposed an elaborate joint program, to be administered under a full time union coordinator to deal with substance abuse in the workplace. Its submission to the Company included extensive documentary materials on the philosophy and workings of its proposed joint substance abuse program.

During that round of negotiations the Company declined to negotiate what would in effect have been a separate Employee Assistance Program with the CAW. The Union was unsuccessful, therefore, in establishing its own substance abuse plan. It subsequently declined the joint overtures of the Company and representatives of the other unions to join in the Union/Management Senior Advisory Committee established between the Company and other unions to generally oversee the Employee Assistance Program.

In the next round of bargaining, in the fall of 1993 the Union once again went to the bargaining table with separate demands for health and safety issues and a substance abuse program. Item 30 of the Union’s proposal was entitled "Protection of Employees (Rule 38)". The demands thereunder include the renewal of a demand for a full time union health and safety representative and joint health and safety committees. General provisions are also proposed for maintaining high standards of health and safety, relating to proper heating and lighting in the workplace and the introduction of dangerous substances and the suspension of an assignment in the event of a refusal of unsafe work. The Union also proposed a separate rule, under item 38, concerning sexual harassment. In a more elaborate document on health, safety and environment, also tabled in support of its demands, it revived its demand for a master committee on safety and health. The scope and jurisdiction of the committee, as then proposed, was generally the same as proposed in 1991.

A general review of the documents supports the Company’s characterization of the Union’s proposal under the heading of safety and health. They variably address such matters as ergonomics, heat and cold stress, noise abatement, ventilation, protection clothing and equipment, the locking out of equipment, first aid, accident investigations and reporting, and the right to refuse unsafe work. They are, it is fair to say, well within the rubric of the kinds of matters dealt with under Part II of the Canada Labour Code. Specifically, they make no reference to alcohol and drug abuse within the workplace as constituting a matter for the jurisdiction of either the local safety and health committees, or the proposed master joint committee. Substance abuse was, however, separately addressed in the demands of the Union tabled in December of 1993. The Union’s proposal, contained in the letter from Mr. Tom Wood, President of Local 100, dated December 10, 1993, made a proposal entitled "Substance Abuse Program" with the accompanying text:

The bargaining which commenced in late 1993 extended through 1994 and 1995. Eventually, on July 20, 1994 the Company agreed to sign off the establishment of a master safety and health committee, as proposed by the Union. It is significant to note, however, that at the same time there were separate ongoing discussions with respect to the Union’s then outstanding demand for a joint employee and family assistance program or substance abuse program. On July 16, 1994 the Union tabled an eleven point guideline proposal under the heading "Employee and Family Assistance Program". It dealt, in part, with such issues as return to work integration and follow up procedures for employees with alcohol or substance abuse problems.

The record discloses that there was a coming together of the issue of workplace safety and substance abuse during the course of bargaining. It appears that on July 20, 1994 the Union tabled a request that its pending substance abuse demands, and its general EFAP proposal be referred to the Master Joint Committee on Safety and Health for further discussion. On the same day, the Company representative Lauren Caron expressly informed the Union of two Company positions: firstly the Company would not agree to establishing a separate EFAP program with the CAW and, secondly, it would not agree to substance abuse issues being put to the Master Joint Committee on Safety and Health.

In the result, the issue remained unresolved between the parties as they proceeded before Conciliation Commissioner Hope. Again, at that stage, the Union’s documentation submitted to the conciliation commissioner dealt very separately with safety and health issues, on the one hand, and its proposed substance abuse program, on the other hand. Item 25 of the documents submitted to the commissioner, entitled "Protection of Employees Rule 38" deals generally with health and safety issues of the kind normally associated with Part II of the Canada Labour Code. Again, sexual harassment is separately addressed as item 31 and the Union’s proposal for a substance abuse program and an EFAP program appears separate and apart as items 34 and 35. The same segregation of issues continued in the subsequent elaboration of the Union’s position, as reflected in its written submission tabled before Commissioner Hope on January 9, 1995. It is that document which contains the language describing the Master Joint Committee on Safety and Health, which was eventually adopted into the collective agreement as rule 35, which is the subject of this grievance. The issues of the Employee and Family Assistance Program, and the substance abuse program were kept separate in the Union’s presentations to Conciliation Commissioner Hope. The Union’s later submission to Commissioner Hope, dated April 17, 1995 again makes separate demands under the heading "Protection of Employees (Rule 38)" and the separate headings of "Substance Abuse Program" and "Employee and Family Assistance Program" which, for the first time, appear under the heading "Health and Safety". Its demands in respect of the latter two issues were eventually dropped in its final submission made on May 16, 1995.

If the conduct of the Union during bargaining suggests that it viewed the issue of substance abuse in the workplace as something to be dealt with separate and apart from the safety and health provisions of rule 35, the positions articulated by certain of its officers away from the bargaining table tend to support the Company’s argument, as a matter of interpretation, that rule 35 and the Master Joint Committee on Safety and Health were never meant to be a vehicle with respect to fashioning or amending EFAP policy. In March and April of 1995 correspondence went between the parties as a result of the invitation of the Company’s System Manager, EAP and Career Transition, to involve the Union in discussions concerning proposed changes in the service provider being used for the Company’s EAP program. The Union attended the meeting, but without prejudice to its general position. A letter dated March 22, 1995 from System and Health Legislative Coordinator, Mr. John Merritt, on behalf of the Union, advised the Company that its involvement in the discussion of the EAP program "… was one of an educational process and would not prejudice our current EAP demands delivered to CN at the bargaining table." As the Company’s counsel points out, that position is one which the Union could, of course, legitimately take. Notably, however, there is no indication on the part of the Union that it believed that the establishment of the Master Joint Committee on Safety and Health, already signed off as of July 20, 1994, would somehow trump the EAP issue then being discussed.

The first indication from the Union that it believed the Master Joint Committee on Safety and Health has jurisdiction in respect of substance abuse issues emerged only after the conclusion of bargaining on issue of substance, and well after the June 14, 1995 interest arbitration award of Mr. Justice Adams. It appears that in response to a joint invitation from the Company and Union representatives for the Union to join in the Joint Union/Management Senior Advisory Committee overseeing the EFAP program, Mr. Bourrier responded, by letter dated November 21, 1996, as follows:

Further, the approach taken by the Union during the developments of the Company’s policy on alcohol and drug problems also suggests that it did not readily view the issue as one which should be dealt with by the Master Joint Committee on Safety and Health. A draft copy of the Company’s proposed policy was forwarded to the Union by Mr. J.T. McBain, Senior Vice-President, Operations, by way of a letter dated November 8, 1996. In that letter Mr. McBain invited the Union’s "comments or suggested modifications" to the policy. By way of response, in a letter dated November 221, 1996 Mr. Bourrier wrote to Company representative Mickey Healey that the Union found the proposed policy "unacceptably offensive" and went on to state, in part:

There is nothing in the response of Mr. Bourrier, a senior representative on the Master Joint Committee on Safety and Health, to suggest that he or the Union then believed that the Company policy on substance abuse was a matter to be referred to the Master Joint Committee. Likewise, a later response authored by Mr. Moore-Gough, dated December 10, 1996 in response to a second draft of the Company policy elaborated a strong objection to the form and substance of the policy, but gave no indication that the matter was one which should be dealt with within the framework of the Master Joint Committee on Safety and Health. Finally, in a telephone conversation between Mr. Healey and Mr. Fane, on or about January 28, 1997, when it became evident to Mr. Fane that the Company was proceeding unilaterally to implement its policy, the Union’s representative again reiterated the CAW’s opposition to the policy, declining to meet further on the matter, but without making any specific reference to the issue as being one appropriate for the Master Joint Committee on Safety and Health.

By way of reply evidence the Union sought to provide examples of occasions on which its representatives did express the view that rule 35 and the Master Joint Committee on Safety and Health were intended to deal with issues such as substance abuse. By way of example he cites a letter written by Lodge 2 Chairman John Roias, addressed to Superintendent R. Garrett of the Willowbrook GO Rail Maintenance Facility. The letter objects to certain medical examinations being required of CAW members before being allowed to operate a newly acquired vehicle. As part of his letter Mr. Roias states:

Further evidence was called, initially through the Company’s witnesses, in relation to a meeting between Company representatives, including Mr. McBain, and several Union leaders, including Mr. Bourrier, at Winnipeg on October 2, 1996. The meeting was pursuant to the Company’s attempt to convene a senior health and safety steering committee involving all of the unions representing its employees. It does not appear disputed that Mr. Bourrier attended the meeting and indicated that the CAW did not view the committee as one with official legal standing. There is contradictory evidence as to what transpired during the course of the meeting concerning the substance of the list of issues to be addressed, including the issue of drug and alcohol testing. Upon a review of the evidence of Mr. Bourrier, as well as that of Mr. Achille Ferrusi, the Company’s Assistant Vice-President for Safety, that while some fourteen points were listed for discussion, there was no substantive exchange on the issue of drug testing or substance abuse, and that the discussion of the fourteen points presented by Mr. McBain was fairly cursory, and adds little, if anything, to the resolution of this dispute.

I turn to consider the merits of the issue of interpretation. In doing so the Arbitrator should stress that collective agreements, particularly collective agreements negotiated within the railway industry between parties sophisticated in the processes of collective bargaining, can be complex and finally nuanced documents. The instant case raises a good example of a phrase, "safety and health" which, standing alone could be interpreted to encompass myriad aspects, arguably all aspects, of an enterprise. Arguably such factors as disparate as the relocation of a shop, the extension of overtime hours, the increase or reduction in the complement of employees or supervisors or changes in methods of repairing or replacing equipment could all be said to impact health and safety. Similarly, behavioural issues such as sexual harassment, race relations in the workplace or provocative and disrespectful styles of management by first line supervisors can likewise be said to touch on the health and safety of workers. It is clear, however, that parties to collective bargaining agreements generally, and indeed the parties to the instant collective agreement, do not intend that each and every management decision or workplace activity which can have ramifications for the health and safety of employees is necessarily something which falls within the jurisdiction of an occupational health and safety committee. Since the advent of occupational health and safety legislation within the various provinces of Canada, as well as within the federal jurisdiction, from the late 1970s and early 1980s, employers and unions have well understood that health and safety committees of the kind established under Part II of the Canada Labour Code concern themselves with matters of direct impact to the physical health and safety of employees, with regard to such issues as safe equipment, ventilation and lighting, guard rails, precautions in relation to hazardous substances and the like. As a general matter such committees have not occupied themselves with matters which tangentially have a health and safety impact, such as sexual or other forms of harassment, or the behaviour of employees which can have disciplinary ramifications. The foregoing comments are not to say that such issues could not, by the agreement of two parties to a collective agreement, properly the form the subject of discussions within an occupational health and safety committee in a given workplace. However, in light of the statutory framework which has historically established the frame of reference for such committees, and the practice which has evolved in the workplace generally, a board of arbitration would require clear and unequivocal language to conclude that issues such as harassment, unruly behaviour or alcohol and substance abuse were intended to be dealt with by a joint health and safety committee, whether at a local or a national level.

Against that general background, what does the specific evidence in the case at hand disclose? I am satisfied, upon a careful review of the bargaining history in relation to rule 35 that the parties to the instant collective agreement agreed to the establishing of a Master Joint Committee on Safety and Health under rule 35 with a view to vesting in that committee a role in respect of overseeing policies and programs which relate to matters touching directly on workplace health and safety, as they have been traditionally understood and have developed in furtherance of the occupational health and safety provisions found in Part II of the Canada Labour Code. Significantly, at virtually all stages of bargaining, from 1991 through 1996, virtually without meaningful exception, the Union tabled its demands for a joint EFAP program and substance abuse program separately from its demands in relation to employee safety and health, and in particular its long standing proposal for a Master Joint Committee on Safety and Health. There is nothing in the bargaining history which underlies rule 35 to support the view that the article, or the master joint committee, were intended to deal with matters relating to the Company’s long-established policies and procedures in relation to the problem of alcohol and drugs in the workplace. On the contrary, the weight of the evidence with respect to the manner in which these issues were presented at the bargaining table, through two successive rounds of negotiations, confirms that a reasonable observer could only conclude that the Union viewed the issue of substance abuse as separate and apart from occupational health and safety, falling outside endeavours of either local health and safety committees or the master joint committee on safety and health ultimately established under rule 35. That conclusion is supported by a review of each and every proposal made by the Union. Significantly, the fact that the bargaining agent continued to press for its own EFAP program and substance abuse program, on a negotiated basis, under the terms of its collective agreement, long after it had agreement with the Company on the establishing of the master joint committee on safety and health confirms that, in the Union’s own mind, the not inconsiderable problem of substance abuse in the workplace and the workings of the EFAP were a discrete and separate matter, to be dealt with quite apart from the master joint committee.

To its credit, the Union views quite seriously the manner in which employees’ substance abuse problems are to be handled, and, as the evidence before me amply confirms, is dedicated to achieving negotiated collective agreement terms which, in its view, are necessary to ensure respect for the dignity and well being of employees generally. Its efforts at bargaining in that direction over a period of several years since 1991 are impressive, just as its efforts to now respond to the Company’s substance abuse policy through the provisions of rule 35, which I am satisfied are an after-thought, are understandable. It is trite to say, however, that I must take the collective agreement as I find it. In the case at hand, I must conclude that there is a latent ambiguity in the scope of jurisdiction contemplated for the master committee as reflected in the phrase "safety and health" as it appears in rule 35. The history of bargaining between these parties on this issue, as well as separate bargaining on the issue of substance abuse, plainly establishes that in their own exchanges at the bargaining table they have consistently treated the issues of workplace health and safety, on the one hand, and substance abuse among employees, on the other hand, as entirely separate collective bargaining issues. To conclude that by signing off the language of rule 35 the parties were ad idem on the joint master committee having full jurisdiction in respect of substance abuse policies in the workplace would be to disregard the reality of the communications between them. An objective observer to the exchanges in bargaining between these parties could not fairly come to the conclusion that they mutually intended that rule 35 be the vehicle for the review of Company policies and programs in relation to substance abuse in the workplace. Neither can this Arbitrator.

Even if it were otherwise, and I were persuaded that the Union’s interpretation of the literal scope of the language of rule 35 is correct, I would alternatively be compelled to decline the Union’s position on the basis of estoppel. Canadian arbitral jurisprudence plainly establishes that the conduct and exchanges of positions at the bargaining table can form the basis of an estoppel. In Re Lake Ontario Cement Ltd. and United Cement Lime and Gypsum Workers International Union, Local 387, (1984) 13 L.A.C. (3d) 2 (M.G. Picher) the arbitrator had occasion to review the jurisprudence and to apply it, in the following terms at pp. 8-10:

I am satisfied that the principles related above are instructive to the transactions between the parties in the case at hand. Although they are not identical from a factual standpoint, the evidence reflects a consistent representation on the part of the Union that its concerns in respect of the EFAP and substance abuse were addressed in its separate bargaining proposal advanced in relation to those issues. I do not see how the Union could withdraw its proposals on those matters, or simply be unsuccessful in attempting to negotiate them, only to assert later that it gained what it sought through the entirely separate agreement reached in respect of the Master Joint Committee on Safety and Health.

In my view, the communications from the Union to the Company at the bargaining table, and before the conciliation commissioner, included the tabling of proposals which were tantamount to a representation that substance abuse in the workplace and the EFAP program were matters to be dealt with separately from the issues of safety and health, which fall under rule 35 and are the concern of the master joint committee. There was never any suggestion from the bargaining agent that the signing off of rule 35 gave it whole or partial satisfaction in respect of its other demands in relation to the substance abuse provisions which it attempted to negotiate separately into the terms of its collective agreement. There was, very simply, no indication to the Company, insofar as the record before the Arbitrator discloses, to suggest that the establishing of the joint master committee was tantamount to vesting a power of approval in the Union in respect of any future policies relating to a substance abuse policy and the EFAP, matters which the Company consistently and adamantly refused to negotiate separately with the Union.

Nor can this fairly be characterized as a matter which may have fallen within a gray area of misunderstanding. As the unchallenged evidence before me discloses, after the signing off of rule 35, when the Union attempted specifically to add the issue of the EFAP program to the mandate of the master joint committee, Mr. Caron, on behalf of the Company, categorically informed the Union’s representative that the Company would neither negotiate a new EFAP program nor would it put the matter for the consideration of the Master Joint Health and Safety Committee. As this was done during the currency of negotiations, on or about July 20, 1994 when rule 35 was signed off, there can be little doubt that the Company neither agreed nor tacitly acquiesced to any such understanding. In the face of these exchanges, I would conclude that the Company could fairly take it that the Union did, in the end, take positions in bargaining which, added together, are tantamount to a representation on its part that substance abuse was a matter for separate consideration, and, absent express agreement, would not be a matter for discussion within the mandate of the master joint committee. In my view the Union is estopped from now asserting any contrary interpretation of rule 35.

For all of the foregoing reasons the Arbitrator must reject the interpretation of rule 35 advanced by the Union as a preliminary matter in this grievance. That conclusion does not, however, dispose of the merits of the grievance, nor should anything within this award be taken as a comment on any aspect of the Company’s policy to prevent alcohol and drug problems, or the merits of the position of either party on whether that policy is contrary to the terms of the collective agreement, in whole or in part. The matter is therefore referred back to the parties for the continuation of the hearing of this matter on its merits.

Signed at Toronto, September 29, 1997