SHP – 475
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
CP RAIL - MECHANICAL SERVICES
CAW – TCA CANADA, LOCAL 101
IN THE MATTER OF THE Grievance of Eugene S. Wolanicki – Dismissal
SOLE ARBITRATOR: P. Coleen Suche, Q.C.
There appeared on behalf of the Company:
Dave Guerin – Labour Relations Officer
Doug Cooke – Manager, Labour Relations
Derek Gourlay – Facility Manager (Diesel Shop)
Bill Burns, – District Manager, Mechanical Services
And on behalf of the Union:
Brian McDonagh – National Representative
Amado Rosales – Vice-President, Prairie Region
A hearing in this matter was held at Montreal on May 14, 1981.
The Grievor was dismissed from his position as an Engine Attendant in the Winnipeg Diesel Shop on May 12, 1992. The dismissal was grieved, and in an Award dated August 20,1996, I ordered that the Grievor be reinstated on a number of conditions.
By way of a letter dated May 21,1998, the Union requested an interpretation of one aspect of the Award, namely condition no. 6, which states:
The Grievor will be subject to random drug/alcohol testing by the Employer for two years following his reinstatement; ...
The interpretation sought relates to the term "drug/alcohol testing".
The background of this situation is that the Grievor was dismissed for being intoxicated at work. The evidence demonstrated that he had consumed alcohol prior to reporting for his shift, and was significantly impaired. The terms on which he was reinstated addressed the issue of his abuse of alcohol, and measures intended to protect the Employer from the risk that an employee who abuses alcohol can pose in a workplace.
The position of the Union, if I can paraphrase it, is that the term "drug/alcohol testing" was intended to refer to the process by which the testing would be done, rather than what the test would measure. This must be what was intended as the case concerned alcohol, says the Union, and to require the Grievor to undergo drug testing in these circumstances would have been in excess of my jurisdiction.
As a preliminary motion the Company argued that I had no jurisdiction to hear this matter, as the award was clear on its face and, in substance, what the Union was seeking amounted to an amendment of the award. Further, as the request was made some 21 months after the award was issued, delay defeated whatever right might have existed.
In reply, the Union maintained that it only learned that drug testing was occurring after the Grievor was informed he had tested positive for cannabis. It was approximately July 1997 when the Grievor received the test results, and as early as November 1997 the Union verbally raised the question of seeking an interpretation of the award with the Company. The formal request was not made until May 1998, but according to the Union this was because it was waiting for a written response for a letter it sent in January 1998, requesting the Company's position. There was some dispute between the parties as to both the sequence of events, the reasons for same, and the exact dates.
With respect to the issue of delay, while the Union could and probably should have acted somewhat faster once it learned that the Company had conducted drug testing. There appears to have been no prejudice to the Company, and the delay, in the overall scheme of things was not overwhelming.
To the extent that the Union is seeking an alteration or amendment to the award, I agree that l am without jurisdiction to grant such an order. However, the request that it makes raises what I consider to be a legitimate issue of interpretation.
Despite some very persuasive arguments from both parties as to what I must have meant and why, all I can do is indicate what I intended when I included the phrase in question in the award. What I meant was that the Company could conduct random testing for drugs and alcohol. While it is true that the situation involved alcohol only, my thinking, (and now I confess I feel compelled to give some rationale to the parties) was that I was trying to put as many safeguards in place as I reasonably could, Because of the particular situation – the facts themselves, the lack of a reliable prognosis, and the Grievor's own view of his situation – there were many unanswered questions about what was the underlying cause of the Grievor's unacceptable conduct. Thus, returning him to his position even under conditions, still posed some risk to the Company given the safety sensitive nature of its business. The ability to detect drugs as well as alcohol was, in my view, a reasonable safeguard in all of the circumstances.
Dated at the City of Winnipeg this 7th day of December 1998.
(signed) P. Coleen Suche, Q.C.