SHP 460:

SHP – 460

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY

(the "Company")

AND

CANADIAN AUTO WORKERS, LOCAL 101

(the "Union")

IN THE MATTER OF THE GRIEVANCE OF P. MCDONALD

SOLE ARBITRATOR: Vincent L. Ready

There appeared on behalf of the Company:

Doug Cooke

Dave Guerin

Glen D. Wilson

And on behalf of the Union:

Brian McDonagh

A hearing in this matter was held at Vancouver, B.C., on March 24, 1998.

AWARD

The parties agree I have jurisdiction, as arbitrator under the terms of their Collective Agreement, to hear and determine the matter in dispute. The case involves the dismissal of the grievor, Engine Attendant P. McDonald. Mr. McDonald was dismissed from service on March 18, 1997 for:

... conduct unbecoming an employee of Canadian Pacific Railway, as evidenced by your involvement with the cultivation, possession, usage and trafficking of Marijuana, while occupying the safety-sensitive position of Engine Attendant, Coquitlam Diesel Shop, Violation of Item 2.1.2 of Form 300-4.

The Joint Statement of Issue filed by the parties states as follows:

JOINT STATEMENT OF ISSUE:

It is the position of the Union that:

the Company has acted in an arbitrary and excessive manner with respect to the dismissal of P. McDonald.

the Company did not establish responsibility as required by Rule 28.1 of the Collective Agreement.

the Company overstepped its authority when it dismissed P. McDonald for matters not related to his employment with CPR.

Therefore, Engine Attendant P. McDonald 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 Union’s contentions and claim.

BACKGROUND

On October 3, 1996 the Company became aware of newspaper articles which outlined the grievor’s involvement, as a key witness, in a criminal trial of two individuals charged with the murder of a Mission jeweller in December, 1994. The newspaper articles indicated that the grievor had been arrested on December 23, 1994 on suspicion of the jeweller’s murder, but was never charged. The articles also revealed that the grievor testified in court that the police offered to drop charges related to three other robberies, in return for providing details about the murder of the jeweller. Further, the grievor had been promised immunity on murder and conspiracy charges.

The newspaper articles outlined the grievor’s admission that he "has used marijuana almost daily since 1980". Further, the article stated: "Mr. McDonald had grown a field of marijuana but moved his operation indoors after some plants were stolen".

As noted, the Company became aware of this information in October, 1996. At that time the grievor had been off work since May 15, 1996 and was receiving weekly indemnity benefits for injuries sustained in an automobile accident earlier that month. Following its normal practice, the Company waited until the grievor was deemed fit to return to work before commencing its investigation into the grievor’s possible involvement in the cultivation of marijuana.

In a memo to the grievor dated December 13, 1996 the grievor was advised by Coquitlam Locomotive Facility Manager, Randy Congdon, that he would have to undergo an investigation into his alleged involvement with illegal drugs before being allowed to return to work. On December 16, 1996 the grievor was advised that the Company could not allow him to return to work before commencing his investigation because he worked in a "safety sensitive position".

The formal Company investigation into the grievor’s alleged illegal activities was not conducted until February 26, 1997, when the grievor advised he was prepared to proceed. At this investigation the Company had opportunity to question the grievor about certain statements he had earlier testified to on September 30 and October 1, 1996 during the murder trial. Specifically, the Company sought information regarding the grievor’s personal drug use, and cultivation of marijuana. The court transcript, obtained by the Company as a public document, contained the following references to these matters:

September 30, 1996

the police found marijuana growing in pots at the grievor’s residence when they raided his property on December 1, 1996 (page 14);

the grievor admitted growing the marijuana (page 14);

the grievor admitted smoking it (present tense) (page 14);

the grievor admitted smoking marijuana from time to time (present tense) (page 21);

the grievor continued to smoke since his conviction for possession "way back" (page 21);

the grievor acknowledged that he had a marijuana grow operation in his house in December, 1994 (page 21);

the grievor had also grown plants outside as well (page 24);

the grievor had about fifty marijuana plants growing at one time (page 25);

the grievor had helped "a friend out" by going and tending his pal’s marijuana plants from time to time (page 50);

October 1, 1996

the grievor acknowledged that he smoked marijuana "from time to time" (page 3);

the grievor also acknowledged using cocaine from time to time (page 3);

the grievor had an outdoor marijuana operation with approximately fifty plants (page 3);

the grievor confirmed that "there was quite a quantity" and that "he would also give it or sell it to other people" (page 3);

the grievor confirmed that the purpose of having the plants was to not only have enough for himself but for other people as well (page 3);

the grievor acknowledged taking cocaine, smoking pot, growing pot and "selling pot" on occasion (page 10);

the grievor acknowledged that he had been involved in criminal activity (page 11);

the grievor acknowledged using marijuana for quite some time, for 19 years, since the age of 15 and confirmed that he was 34 years of age at the time (page 18);

the grievor acknowledged that he was a regular user for the "last sixteen years", since 1980 (page 19);

the grievor decided to grow marijuana because it was "too expensive" and started to grow marijuana in 1993 (page 19);

the grievor confirmed that he "used it every day" (page 19);

the grievor stated that he had "stopped growing" since the police raid of December 23, 1994 (page 20);

the grievor once again acknowledged that he used "marijuana on an almost daily basis" (page 20);

During the course of his testimony at trial the grievor admitted to having given or sold marijuana.

During the course of the February 26, 1997 investigation, the grievor explained that he doesn’t "do drugs anymore". His drug test taken on same day supported his assertion.

Also on February 26, 1997, and in respect of the matter of marijuana cultivation, the grievor stated he did not sell it to other people but rather gave away the proceeds of his fifty or so plants. He explained he did not draw a distinction between giving or selling it at the trial because his lawyer had told him "giving it away is the same as selling it". He added that he was "under a lot of pressure and stress at the time" of the trial.

On February 26, 1997 the grievor stated he disagreed with statements he had made in court regarding the amount of marijuana he personally consumed. At trial he agreed he was a "daily user", who consumed "a couple of joints a day" or "about 14 or 15 per week". At the Company investigation on February 26, 1997 the grievor stated the amount testified to at trial "is incorrect". He explained that he "just basically agreed with what the lawyer was saying", as a result of "the pressure" he, the grievor, felt he was under.

On February 26, 1997 the grievor stated his consumption of marijuana "was a lot less" than what he had testified to at the murder trial. He did not clarify what "a lot less" meant except that he was no longer a daily user.

At the February 26, 1997 investigation the grievor denied ever having supplied Company employees with marijuana or any other illicit drugs. He added, however, that he was unaware of the Company’s Policy on Health and Accident Prevention Policies which contain the following:

2.1.2.1 The use of intoxicants or narcotics by employees subject to duty, or their possession or use while on duty is prohibited.

2.1.2.2 the use of mood-altering agents by employees subject to duty, or their possession or use while on duty is prohibited, except as prescribed by a doctor.

During the Company investigation the grievor stated he stopped using drugs on December 24, 1994. He said he quit "cold turkey", and that he has since taken great strides in correcting his life. At this hearing the Union submitted a number of letters from various community members and charitable organizations in praise of the grievor’s continuing contributions. By all of these accounts the grievor has appeared to have gotten his life back on track.

DECISION

The Union’s claim, as set out in the Joint Statement of Issue quoted above, involves consideration of essentially three questions. First, whether the grievor’s conduct gives rise to just cause for some measure of discipline. Second, based on all of the circumstances surrounding the matter, was dismissal an appropriate response. Finally, if the dismissal was excessive, what penalty shall be substituted.

In respect of the first question, I accept that the grievor was engaged in the alleged cultivation and sale of marijuana, and that he used the drug daily at least as late as the time of his testimony at the murder trial on October 1, 1996. The court transcript of his evidence contains a number of unqualified references to the grievor’s illegal activities. The grievor had no reason to mislead, or attempt to mislead, the court on these matters. For him to assert, at the Company investigation on February 26, 1997, that what he said in court was essentially untrue is not believable. These are matters which would have enhanced his credibility at the murder trial, it is therefore likely that he would have made the assertions at that time, if they were true.

Specifically, I do not accept that the grievor stopped using the drug daily (two joints per day) on December 24, 1994 as he told the Company on February 26, 1997. Rather, I accept he consumed about two joints per day as at October 1, 1996 when he said so at trial. Further, there is nothing to support the grievor’s present assertion that he did not sell the drug he cultivated, rather he gave it away. This flies in the face of what he admitted to at trial, when he testified he sold "pot...on occasion".

The test of an employer’s right to be concerned with an employee’s off-duty misconduct was raised in a case involving Millhaven Fibres, cited in Re Air Canada and International Association of Machinists (1973) 5 L.A.C. (2d) 7. In the Millhaven decision, Arbitrator Anderson wrote:

... if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:

1. The conduct of the grievor harms the Company’s reputation or product

2. The grievor’s behaviour renders the employee unable to perform his duties satisfactorily.

3. The grievor’s behaviour leads to refusal, reluctance or inability of the other employee to work with him

4. The grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees

5. Places difficulty in the way the Company properly carrying out its function of efficiently directing its working forces

It is my interpretation that it is not necessary for a company to show that all five of the criteria in the Millhaven Fibres case have followed on the employee’s conduct; rather, any one of the consequences named may warrant discipline.

In Ontario Jockey Club and Mutuel Employees Association (1977) 17 L.A.C. (2d) 176 Arbitrator Kennedy set out the relevant factors to be weighed in balancing the competing interests arising out of a dismissal for conduct that has taken place off duty. At p. 178 the arbitrator stated:

... 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.

In respect of the factual situation before this board, it has long been recognized that a connection does exist between the grievor’s criminal conduct in trafficking and using marijuana and his employment relationship in a safety sensitive position with Canadian Pacific. In SHP Award 370, Arbitrator Picher had opportunity to consider the dismissal of a Carman for his involvement with the possession and trafficking of marijuana. Like the grievor in the present case, the grievor before Arbitrator Picher occupied a safety sensitive position. Arbitrator Picher stated:

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 extent 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.

In upholding the termination, Arbitrator Picher found the Company to have a legitimate concern about the ramifications of having a known drug user and trafficker in a safety sensitive position. He stated:

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 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 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.

I concur wholeheartedly with Arbitrator Picher’s analysis and agree that it has application to the present case. There are inherent dangers associated with the heavy duty repair and movement of railway equipment. The Company has a legitimate interest in providing its employees with a drug free and safe workplace and ensuring that public confidence is not jeopardized.

Having carefully considered the evidence and submissions of the parties I accept that the grievor’s conduct did give rise to just cause for some measure of discipline, and that discharge was an appropriate response. The Company has established that the grievor was heavily involved with the production and use of drugs while occupying a safety sensitive position. The grievor has not shown sufficient mitigating factors to relieve against the penalty of dismissal.

The grievance is therefore dismissed. It is so awarded.

DATED AT the City of Vancouver in the Province of British Columbia this 21st day of April, 1998.

(signed) VINCENT L. READY

ARBITRATOR