SHP – 480
IN the MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY – MECHANICAL SERVICES
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
re: DISCHARGE OF A. M. DREYSKO
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
B. R. McDonagh – National Representative, Local 101
A. Rosales – Vice-President, Prairie Region, Local 101, Winnipeg
K. Cooper – Witness
A. Dreysko – Grievor
Appearing For The Company:
D. E. Guérin – Labour Relations Officer, Calgary
R. Gosine – Facility Manager, Golden
G. L. Hume – Assistant Operations Co-Ordinator, Sutherland Mechanical Department
A hearing in this matter was held in Winnipeg, Manitoba on April 23, 1999.
This arbitration concerns the discharge of Engine Attendant A. Dreysko at the Company’s Mechanical Facility at Sutherland, Saskatchewan for the alleged consumption of marijuana while on duty. The ex parte Dispute, Statement of Fact and Statement of Issue filed by the Union relates the nature of the dispute, and reads as follows:
Dismissal of Engine Attendant A. Dreysko, Sutherland.
STATEMENT OF FACT:
On April 5, 1998, Engine Attendant A.M. Dreysko was dismissed for:
“… conduct unbecoming an employee of CP Railway, as evidenced by your admitted smoking of and possession of marijuana on Company duty while holding a safety sensitive position, a violation of Form 300-4, Item 2.1.2, subsection 22.214.171.124, on January 26, 1998, Sutherland, Saskatchewan.”
STATEMENT OF ISSUE:
It is the position of the Union that:
Ø The Company has acted in an arbitrary and excessive manner with respect to the dismissal of Mr. A. Dreysko.
Ø The Company has misread the information before it and wrongly accused Mr. A. Dreysko of admitting to smoking and possession of marijuana on Company duty.
Ø That there is no objective evidence in existence which verifies the Company’s assertions.
Ø The evidence the Company claims to have found on which it bases its assertions was never presented to the Union for verification.
Ø The Company indicated to A. Dreysko that his employment would be protected should he avail himself of assistance from the Employee and Family Assistance Program.
Therefore, the Union requests that Mr. Dreysko 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 monies owing.
The Company denies the Union’s contentions and claim.
The Company’s case depends substantially on the evidence of two supervisors, Mr. G.L. Hume, Assistant Operations Coordinator at the Sutherland Mechanical Department, and Mr. R. Gosine, who at the time material to this grievance was the Operations Coordinator in charge of the Mechanical Department. The evidence of Mr. Hume establishes that on January 26, 1998, at approximately 0400 Engine Attendant Dreysko was assigned to unloading a tank car. Mr. Hume proceeded to the area of the tank car to find the grievor, and found no-one was to be seen. The supervisor then entered the adjoining locomotive shop to search for the grievor, and as he did so detected what he recognized as the smell of marijuana in the area. He proceeded to the door of an old stores office, where he observed Mr. Dreysko sitting at a desk inside. According to Mr. Hume’s testimony he turned on the lights in the room as he entered, observing that the grievor had removed his toque, and covered something on the desk with it. He relates that Mr. Dreysko explained that he was just warming up inside and having a pop. When he replied that the grievor had been “smoking dope” Mr. Dreysko denied the suggestion and repeated that he was just warming up. When Mr. Hume moved forward and attempted to lift the grievor’s woollen toque off the desk, he relates that Mr. Dreysko pushed it back down and appeared to gather up material on the desk into the hat, as he rose immediately to leave the room. Mr. Hume relates that he stated to Mr. Dreysko that he would have to report the matter to his own supervisor, Mr. Gosine, which caused Mr. Dreysko to respond “No, he’ll fire me.” When Mr. Hume explained to Mr. Dreysko that he had no option, and that condoning the consumption of marijuana at work could get him fired, he related to Mr. Dreysko that the Company’s EFAP program was available if he had a problem. Mr. Dreysko then reminded him that he was then still a participant in that program.
It appears that Mr. Dreysko then left the building and proceeded towards the parking lot, with Mr. Hume in pursuit, wearing only a cotton shirt on an extremely cold night. Unable to persuade Mr. Dreysko to remain in place until Mr. Gosine could be summoned, the grievor left a message for Mr. Gosine by telephone, which caused Mr. Gosine to return the call and thereafter proceed to the Mechanical Facility within approximately a half hour of the incident.
Mr. Dreysko, who returned to the workplace shortly after his visit to the parking lot, then met with Mr. Hume and Mr. Gosine in the latter’s office. The evidence of Mr. Hume and Mr. Gosine, which the Arbitrator accepts without reservation, is that during the course of their conversation Mr. Dreysko admitted to having consumed marijuana. Although he later took the position that he was merely admitting to smoking marijuana at home and while off work, the Arbitrator is satisfied that the evidence with respect to the grievor’s admission as rendered by Mr. Hume and Mr. Gosine is more reliable. It appears that the meeting concluded by the supervisors establishing telephone contact with an EFAP representative to facilitate the grievor’s referral to the program.
After Mr. Dreysko left the office Mr. Hume and Mr. Gosine returned to the old stores office where they recovered what they described as marijuana roaches and loose pieces of a tobacco-like substance from the surface of the desk and the floor immediately adjacent. The materials so gathered were kept in a safe in Mr. Gosine’s office, and were later forwarded by CP Police to the RCMP for testing. The report ultimately received from the RCMP laboratory confirms that a single cigarette butt was tested and found to contain cannabis.
Following a disciplinary investigation the Company discharged Mr. Dreysko. In support of its decision it notes to the Arbitrator that the grievor is not a long term employee, having been hired in June of 1989. It also draws to the Arbitrator’s attention the grievor’s prior disciplinary record which includes the assessment of forty demerits on February 9, 1996, after the grievor reported for duty under the influence of alcohol. It appears that that discipline was ultimately reduced to twenty-five demerits by the decision of an arbitrator.
The Union’s representative objected to the Company making reference to the grievor’s disciplinary record. He submits that it cannot do so as the issue of the grievor’s prior discipline has not been noted within the Company’s Statement of Issue, and that it is not in any event appropriate to make such reference. The Arbitrator cannot sustain the position so argued by the Union’s representative. The preponderant jurisprudence in Canadian labour arbitration recognizes that where an employer determines that the conduct of an employee merits discipline, it may treat that conduct as a culminating incident which, in light of the employee’s prior discipline, justifies the termination of his employment. In that circumstance it is permissible for the employer to adduce evidence with respect to the employee’s prior disciplinary record. As a general rule the state of the prior record need not be stated as part of the reason for the discipline assessed in relation to the culminating incident. (See, e.g., Cascade Construction Ltd. (1986) 26 L.A.C. (3rd) 108 (Beattie); Newton Readimix Readi-Mix Ltd. (1984) 17 L.A.C. (3rd) 333 (Dorsey); American Standard, Division of Lobco-Standard Ltd. (1977) 14 L.A.C. (2d) 139 (Burkett).) Certainly within the railway industry, both in the Canadian Railway Office of Arbitration and in the presentation of grievances to arbitration within the shopcraft trades, parties generally rely upon the prior service and disciplinary record of employees, both good and bad, to advance their positions in relation to the appropriateness of discipline assessed for a particular incident. That is a process arguably essential to the administration of progressive discipline. I know of no principle which would prevent the Company from relying upon the grievor’s disciplinary record, as it seeks to do in the instant case.
Rule 29.4 of the collective agreement provides as follows:
29.4 A Joint Statement of Issue containing the facts of the dispute and reference to the specific provision or provisions of the collective agreement where it is alleged that the agreement has been violated, shall be jointly submitted to the Arbitrator at least thirty (30) days in advance of the date of the hearing. In the event the parties cannot agree upon such Joint Statement of Issue, each party shall submit a separate statement to the Arbitrator at least thirty (30) days in advance of the date of the hearing and at the same time provide a copy of such statement to the other party.
In the Arbitrator’s view there is nothing in the foregoing provision which would require the Company to specifically cite the grievor’s prior disciplinary record as a matter in dispute for the purposes of the Joint Statement of Issue, or of its own ex parte statement. While the language of the rule would plainly constrain the Union or the Company from raising new rules within the collective agreement at the arbitration stage where those rules are not referred to within the joint statement, it cannot be construed as preventing either party from bringing to bear evidence in respect of an employee’s prior disciplinary record, whether for the purposes of aggravation or mitigation with respect to the appropriate penalty.
The Union’s representative further makes extensive submissions with respect to what he characterizes as the dubious nature of the chain of custody of the marijuana roaches secured by Mr. Hume and Mr. Gosine, and ultimately forwarded to the RCMP for analysis. On the whole the Arbitrator would be inclined to allow those objections. It is clearly incumbent upon the employer, which bears the burden of proof, to come forward with a full record of direct evidence with respect to a matter as sensitive as testing of alleged illicit drugs, particularly where a challenge in that regard is made by the opposing party. I would, if it were necessary, find that this aspect of the evidence adduced by the Company is indeed wanting.
The foregoing finding, however, does not change the ultimate merit of the dispute before me. Even without the evidence of the RCMP’s report, there is ample direct evidence upon which the Arbitrator can and does conclude that Mr. Dreysko was in fact involved in the consumption of marijuana while employed in a safety sensitive position handling dangerous goods during his tour of duty on the evening of January 26, 1998. I am satisfied, based on the evidence of Mr. Hume and Mr. Gosine, that Mr. Dreysko was in fact in possession of marijuana on the work premises when he was first observed by Mr. Hume. I am further satisfied that he did admit to having consumed the drug while on duty, both in his initial remarks to Mr. Hume and in his later statement in Mr. Gosine’s office. In the circumstances I am satisfied, on the balance of probabilities, that the Company is correct in its conclusion that Mr. Dreysko did involve himself in the consumption of marijuana while on duty at the time in question.
Regrettably, there are few, if any, mitigating factors which would justify a reduction of penalty. The grievor is not a long service employee. More significantly, he was previously disciplined for reporting for duty while under the influence of alcohol. While his own account, which I accept, confirms that he has been a participant in the activities of Alcoholics Anonymous, and has made substantial strides in his personal life, the fact remains that he did engage in the consumption of a mind-altering substance while at work, and that there is no medical evidence adduced to confirm that he then suffered from an addiction to or a dependence on marijuana, which he states he had then been consuming for approximately a month and a half. While it is to be hoped that the grievor’s personal life will take a more positive direction, there is no compelling basis upon which the Arbitrator can, on the facts of the instant case, reverse the decision taken by the Company. The consequences for the consumption of marijuana in a safety sensitive workplace are well recognized within Canadian arbitral jurisprudence. (See, e.g., SHP 328, a grievance involving Canadian Pacific Limited and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, an unreported award of this Arbitrator dated September 17, 1990; CROA 2994; and Re McDonnell Douglas Canada Ltd. and Canadian Automobile Workers, Local 1967 (1994) 14 L.A.C. (4th) 235 (Gorsky).) Given the severity of the infraction committed by the grievor, who occupies a safety sensitive position, coupled with his prior record and relatively limited service, the Company’s decision should not be disturbed.
For the foregoing reasons the grievance must be dismissed.
Dated at Toronto, April 30, 1998
(signed) MICHEL G. PICHER