IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
AEROSPACE, TRANSPORTATION AND
GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
RE: DISCHARGE OF V. G. ROWE
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
D. Wray – Vice-President, Local 100
J. R. Moore-Gough – President, Local 100
B. DeBaets – Local Chairman
R. Bourrier – Health & Safety Legislative Coordinator
V. G. Rowe – Grievor
Appearing For The Company:
J. E. Pasteris – Manager, Labour Relations, Montreal
L. Lewsey – Team Leader Transcona Traction Motor Shop, Winnipeg
N. Hawthorn – Supervisor Transcona Traction Motor Shop, Winnipeg
J. Everton – CN Constable, Winnipeg
B. Dolphin – Manager Administration Transcona Main Shops, Winnipeg
S. Dwived – Manager, Research
A hearing in this matter was held in Montreal on Monday, February 7, 2000.
This arbitration concerns the discharge of an employee for alleged impairment while on duty. The grievor, Mr. V.G. Rowe, was discharged following a Company investigation into the events of October 7, 1999 at the Transcona Motive Power Shop in Winnipeg. An outline of the dispute is reflected in the ex parte statement of issue filed by the Union, which reads as follows:
EX PARTE STATEMENT OF ISSUE:
On October 7, 1999 Mr. Rowe, a Heavy Duty Mechanic’s Helper, had reported for duty on the 15:00 – 23:00 hours shift and was found to have a strong odour of alcohol on him as well as exhibiting abnormal behaviour. Following discussions between several Company officers, a CN constable and with the grievor, he was relieved of his duties for the remainder of the shift. The grievor was not returned to work.
A statement was conducted with the grievor on this matter on October 14, 1999. Following this investigation Mr. Rowe was discharged from the service of the Company on October 19, 1999.
The Union contends the Company applied its policy intended for risk sensitive positions to Mr. Rowe who did not occupy a risk sensitive position; the Company did not establish a relationship between the odour of alcohol and impairment; the Company’s Drug Testing Policy is arbitrary and discriminatory; Mr. Rowe was treated in an arbitrary, discriminatory and excessive in manner in regard to his dismissal. The Union requests the grievor be reinstated with no loss of seniority, with full redress for all 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 declines its request.
The evidence before the Arbitrator confirms that on October 7, 1999 the grievor was observed by a number of individuals to be smelling of alcohol after the commencement of his tour of duty in the traction motor shop at 15:00. The record discloses that Mr. Rowe attended a meeting with other employees at the commencement of his shift, apparently dealing with the construction of traction motors. During the meeting he was observed to be uncharacteristically outspoken.
When Mr. Rowe entered the lunch room for the meeting he was handed his time card by his supervisor, Team Leader L. Lewsey. Mr. Lewsey reports that he immediately smelled a strong odour of alcohol coming from the grievor.
In addition, at approximately 15:30 hours Supervisor Neil Hawthorn was approached by a day shift employee who expressed to him concerns about Mr. Rowe, whose duties generally involved the operation of a forklift. He apparently related to Mr. Hawthorn that the grievor smelled of alcohol. When Mr. Hawthorn conveyed that information to Mr. Lewsey, the latter advised him of the odour he had detected at the lunch room meeting. Mr. Lewsey then requested that Mr. Hawthorn proceed to meet with Mr. Rowe to observe him himself. He did so, encountering the grievor by his forklift, which was then parked. He spoke briefly with him, during which time he detected the smell of alcohol coming from Mr. Rowe.
The facts so gathered were disclosed to Shift Leader Ralph Booker. It was then decided that Mr. Booker and Mr. Lewsey would proceed to speak with Mr. Rowe. They encountered him in the north vestibule area where Mr. Booker advised Mr. Rowe that two supervisors formed the opinion that he had an odour of alcohol. Mr. Booker then requested that the grievor breathe in his direction, which Mr. Rowe did. Mr. Booker reports that he also smelled alcohol on the grievor's breath.
During that encounter, when asked whether he had been drinking, Mr. Rowe stated that he had not been drinking that day, but that he had been drinking the night previous, after the conclusion of his tour of duty at 11:00 p.m.
Mr. Rowe was then advised that he would not be operating the forklift, and was directed to the traction motor shop office to meet further with his supervisors. CN Constable Jim Everton was called to that location to administer an alcohol screening test to Mr. Rowe. While waiting in Mr. Booker's office the grievor was also interviewed briefly by Assistant Superintendent M. Gendreau, who also stated openly to the grievor that he could detect a strong odour of alcohol coming from him. Apparently Mr. Rowe responded that he had consumed eight or nine beers after work the previous night.
At approximately 16:20 Constable Everton arrived to test the grievor by the use of a roadside screening device. It is common ground that the device is used as a threshold instrument, to determine whether there is reasonable and probable cause for a fuller test using a calibrated breathalyser. It is common ground that Constable Everton was in fact unable to take a proper reading of the grievor because of an apparent failure in the batter of the device he was using. Constable Everton, who testified at the arbitration hearing, gave evidence that in his opinion there was no probable cause to have Mr. Rowe undergo a full breathalyser examination, which would have involved the local municipal police. He stated that, based on his own observations, he was satisfied the there was not probable cause to subject Mr. Rowe to a full breathalyser test. In his opinion Mr. Rowe was not impaired, and would not have exceeded the permissible blood alcohol content reading on a breathalyser test. The Company nevertheless instructed the grievor that he would not work for the remainder of his shift, and arranged for him to be transported home.
The first issue to be determined is whether the grievor was impaired when he reported for work on October 7, 1999. There can be little doubt that he then smelled of alcohol, although it is not clear whether that condition might have been occasioned by his relatively heavy drinking, said to have continued until 5:00 a.m., the morning of that day. In any matter of discipline the burden of proof is upon the Company. Given the seriousness of the allegation, and the grave consequences which would flow from it, in such a matter it is not unreasonable for a board of arbitration to demand a relatively high standard of evidence.
In the instant case the evidence as to the grievor's impairment is relatively equivocal. Although he was observed by several supervisors, all of whom confirmed that the grievor gave off an odour of alcohol, there is no evidence from any of the witnesses concerned disclosing the normal indicators of intoxication, such as glassy eyes, slurred speech or unsteadiness in walking and standing. To all outward appearances the grievor exhibited none of those elements. Further, and of significant weight in the Arbitrator's opinion, is the candid testimony of Constable Everton to the effect that he did not believe the grievor to be impaired to the point that would justify a breathalyser, on a basis of reasonable and probable cause.
It should be stressed that in the instant case the Arbitrator makes no determination with respect to the Union's submissions as to the Company's drug and alcohol policy. That policy, the subject of another pending grievance between these same parties, does not come into play for the purposes of resolving the merits of this grievance.
In the result, the Arbitrator is compelled to conclude that the grievor did present himself at work smelling strongly of alcohol. He knew, or reasonably should have known, that coming to work in that state would prompt a reasonable employer to investigate his condition, and to prohibit him from operating a forklift pending clarification of his status. While the initial breath screening exercise was not successful, there appears to be little doubt but that there was some residual effect of alcohol in the grievor's system when he presented himself for work. The evidence does not, however, disclose that he was impaired. In all of the circumstances I am satisfied that this is a case for reinstatement, but not for compensation.
The grievance is therefore allowed, in part. The Arbitrator directs that Mr. Rowe be reinstated into his employment forthwith, without compensation for wages and benefits lost and without loss of seniority. I retain jurisdiction in the event of any dispute concerning the interpretation or application of this award.
Dated at Toronto, February 18, 2000
MICHEL G. PICHER