IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
GRIEVANCE RE: FITNESS TO WORK POLICY
11/ARB/056 – KAI0022
SOLE ARBITRATOR: MICHEL G. PICHER
APPEARING ON BEHALF OF THE COMPANY:
Katherine Bilson – Legal Counsel, Calgary
James Kienzler – Director, Safety Policies & Programs, Calgary
Paul Wajda – General Manager, Planning & Development,
Lisa Trueman – Director, Health Services, Calgary
APPEARING ON BEHALF OF THE UNION:
Brian Stevens – National Representative, Toronto
Tom Murphy – President, Local 101, Calgary
A hearing in this matter was held in Calgary, Alberta on March 12, 2012.
This arbitration concerns the Union’s grievance against a revised Fitness to Work Medical Policy issued by the Company effective October 1, 2011. The Union alleges that employees are prejudiced by their re-designation into a safety sensitive position by reason of their occasional involvement in moving locomotives on shop tracks, a change which will require a number of them to undergo a medical assessment and all of them to be subject to the Company’s policy on drug and alcohol testing. The facts and issues are succinctly stated in the joint statement of issue filed at the hearing, which reads as follows:
STATEMENT OF ISSUE:
In September 2011, CP Rail issued a notice to employees and the Union that effective October 1, 2011 a revised Fitness to Work Medical Policy would come into effect. For CAW bargaining unit, this change added Diesel Mechanics, Diesel Mechanic Apprentice/Trainee and the Diesel Maintainer to the Safety Sensitive Position (SSP) list from the Non-Safety Sensitive Positions (NSS) where the classification resided since the inception of the Policy.
The Diesel Mechanic classification is occupied by more than 750 mechanics, maintainers, apprentices and trainees with a large number of them having been performing the movement of locomotives in and out of shop facilities for the better part of their careers.
In the Union’s view, the Company has unilaterally expanded the scope of SSP to include the Diesel Mechanic classifications and is anchored on the basis that on occasion Diesel Mechanics may move locomotives in and out of shop facilities for the better part of their careers.
The Union contends that the requirement for all current employees in the Diesel Mechanic classification to undergo mandatory pre-placement medical assessments is overreaching and unreasonably prejudices the employees to the point where they may be exposed to sanctions, including the removal from their long held current position or perhaps other administrative measures.
The Union also contends that Diesel Mechanic classifications employees who are not STOC qualified nor required to move locomotives directly in and out off facilities or within terminal area on occasion, should not be included as SSP as they are not, nor will they be, engaged in any safety sensitive duties.
The Union also contends that elements of the Medical Assessment themselves are an invasive regime that inappropriately seeks personal and private information for what are essentially health related issues and not safety related issues.
The Union is requesting that the grievance be upheld as it applies to CAW members and seeks:
· The inclusion of only STOC Qualified Diesel Mechanics on the Safety Sensitive Positions lists found at Appendix B of the Policy.
· The exclusion of all current employees within the Diesel Mechanics classification including apprentices, trainees and maintainers from the requirements to submit to a Fitness to Work Assessment as part of any “medical alignment” regime in the 2011 Policy.
· That the Medical Assessment elements which infringe on a person’s privacy and dignity interests in a fundamental way be removed from the Medical Assessment form
The Company disagrees with the Union’s contention and has declined the Union’s grievance.
The Union represents a bargaining unit comprised of shop craft employees who are involved in the repair and maintenance of railway equipment, including locomotives and railcars. It is common ground that by means of a memorandum of agreement dated February 11, 2005, the parties negotiated a change of trade by establishing the position of Diesel Mechanics. That craft encompassed both what were previously designated as locomotive mechanics and engine attendants. The work of engine attendants, also known as hostlers, largely involved the operation of locomotives so as to move them to and from various locations on shop tracks. At the time the designation of Diesel Mechanics (DM) was established the parties also established the designation of Diesel Service Attendants (DSA) for the former engine attendants. That was part of an initiative by the Company to eventually eliminate the Engine Attendant and DSA positions, either by training and promotion or by attrition. It is the employer’s goal to have all employees in these classifications eventually become Diesel Mechanics. To that end employees in the DSA category were given the option of training to become diesel mechanics. Those who declined to do so, or who were not successful, became subject to a lifetime red circling as DSAs. Most significantly, the parties’ agreement contemplated that DMs would perform the functions of Engine Attendants, including the movement of locomotives within the service areas. Thenceforth no new DSAs would be hired and all new hires would be in the DM classification.
These events involved an important intersection with the Safety Critical Position Rules established by Transport Canada pursuant to section 20 of the Railway Safety Act. The railway rules governing safety critical positions provides a definition of what are deemed to be safety critical positions, as follows:
A “Safety Critical Position” is herein defined as:
1. any railway position directly engaged in the operation of trains in main track or yard service; and
2. any railway position engaged in rail traffic control.
The above rules, introduced by Transport Canada on June 16, 2000, did not directly address the situation of employees who, while they might not operate a train, might nevertheless operate equipment, including a locomotive, in circumstances which are clearly safety sensitive.
Following on the initiative of Transport Canada, referred to as Transport Canada Order 0-17 of June 16, 2000, the Railway Association of Canada, CP, CN and VIA Rail worked together to determine positions which would fall into the definition of safety critical. In doing so, it became apparent that there are positions which, although not safety critical, nevertheless involve high potential risk to the public and to employees. Among those are the positions of employees required to hold Track Occupancy Permits, to operate heavy cranes or to move heavy equipment, including locomotives and rail cars in the course of their duties. Under the Company’s safety management system (SMS), such positions became identified as safety sensitive positions (SSP). With the implementation of the Company’s Fitness to Work Policy, on December 1, 2001, a number of positions were listed as being either safety critical positions or safety sensitive positions. Among the safety sensitive positions was the position of Engine Attendant, by reason of the responsibility of the incumbents in that position for the movement of locomotives. Persons responsible for the operation of track mobile units and heavy cranes were also designated as holding safety sensitive positions.
As noted above, the memorandum of settlement of February 11, 2005, effectively merged the positions of Diesel Mechanics and Engine Attendants or Hostlers, newly re-classified as Diesel Service Attendants. By that agreement the newly designated position of Diesel Mechanic would include among its duties and responsibilities the operation and movement of locomotives on shop tracks. On that basis, therefore, it became a safety sensitive position.
In light of these developments with respect to safety critical and safety sensitive positions the Company, which prides itself as being recognized by the U.S. Federal Railroad Administration as the safest railway in North America, determined that it would be critical for it to be in possession of fitness to work medical records for all employees who occupy a safety sensitive position.
Effective October 1, 2011 the Company’s amended Fitness to Work Medical Policy was issued to the attention of all employees. That policy, which addressed both safety critical positions (SCP) and safety sensitive positions (SSP) included, in part, the following policy statement:
2.0 Policy Statement
No individual will occupy or perform SCP or SSP duties without appropriate medical clearance. All individuals must report for work in a condition that enables them to safely and effectively perform their duties.
CP will ensure that appropriate medical fitness to work assessments are conducted for individuals in, or candidates for, SCPs and SSPs. The assessment of fitness to work will be made based on an individual’s specific job requirements, the nature of any medical condition and the level of potential safety risk.
The fitness to work requirements for safety sensitive positions are described within the policy as follows:
2.3 Safety Sensitive Positions
2.3.1 The fitness to work medical assessment and monitoring requirements for employees occupying or performing any of the functions of SSPs are as follow:
a) Subject to a pre-employment or pre-placement medical assessment, (to include baseline hearing and vision testing) prior to be allowed to work in such a position.
b) Subject to further hearing testing within 5 years and after the age of 40 as directed by OHS.
c) Subject to a reinstatement or employment agreement medical assessment prior to returning to work in such a position as directed.
d) Subject to any OHS medical monitoring requirements based on the medical condition and the job requirements.
e) Subject to a medical declaration from their Treating Physician before returning to such a position after a prolonged absence of greater than six months or for other than medical reasons. Further medical information may be required if there has been a change in the employee’s medical condition that could affect the level of potential safety risk.
The list of safety sensitive positions within the Company is found in Appendix B. With respect to Mechanical Services the following appears as the list of designated safety sensitive positions:
MECHANICAL SERVICES – UNIONIZED POSITIONS:
* Railcar Mechanic
* Railcar Mechanic Trainee/Apprentice
Crane Operator – 60 tons or greater
Engine Attendant Lead Hand
Engine Attendant Helper
Diesel Service Attendant (DSA)
Diesel Mechanic Trainee/Apprentice
With respect to the asterisked positions of Railcar Mechanic and Railcar Mechanic Trainee/Apprentice, the document indicates that they are deemed safety sensitive only if they are required to take track occupancy authorization or operate track mobiles.
It is common ground that before Diesel Mechanics can operate locomotives they must successfully complete training in what is known as the Shop Track Operations Curriculum (STOC), said to be a five day training course with both classroom and field operation components. It appears that as of the date of the hearing of the approximately 700 employees in the DM classification, all but 100 have successfully passed the STOC qualification.
The Company considered it important that it have full medical records for all employees in the newly established diesel mechanic position, as they would exercise safety sensitive responsibilities in the operation of diesel locomotives. Counsel for the Company relates that on a review of the employees’ files, it was found that 621 of the 700 DMs had on record their full pre-employment medical reports. However, for whatever reason, no medical records could be found as regards seventy-nine of the diesel mechanics.
The Company considers that it is critical that it have full medical information on file for any employee who holds either a safety critical position or a safety sensitive position. Consequently, on September 2, 2011 the Company’s Occupational Health Services sent letters to the seventy-nine employees in the Diesel Mechanic classification for whom no medical records could be found. They were notified of the requirement to undergo an Alignment Medical Assessment if they did not have a pre-employment medical assessment on their current OHS file. They were given six months to complete the medical assessment, which was to be done by their personal physician, at the Company’s expense. A sample of the letter sent to employees for whom the Company did not have pre-employment medical records was placed in evidence. It reads, in part, as follows:
All employees who hold an SSP designation are subject to the Company’s Fitness to Work (FTW) Medical Policy and Substance Testing Policy. You are subject to these policies effective 1st October 2011.
The FTW policy requires that Safety Sensitive employees be “subject to Pre-Employment or Pre-Placement Medical Assessment prior to being allowed to work in such a position”. In order to align you with this Policy prior to the effective date you are required to undergo a specially designed individual Safety Sensitive Alignment (SSA) Medical Assessment which can be performed by your own Physician.
Attached to this letter is a reporting package with medical form to take to your Physician in order to get this medical assessment completed.
What do you need to do now:
1. Make an appointment with your Physician to have this medical completed.
2. Complete your sections in Part 2 and 3 of the Safety Sensitive Alignment (SSA) Medical Report Form prior to attending your appointment. Your Physician is required to complete the remainder of the form and return it directly to OHS.
3. Take this letter, the SSA Medical Report Form, and the attached Job Demands Analysis (JDA) to your Physician on your appointment so that he/she is aware of what is required.
4. Ensure this medical and report form is completed and returned to OHS directly by your Physician within 6 months of the date of this letter.
The cost of this medical assessment will be paid for by the Company. Your Physician can forward the medical report form with their invoice for services directly to: …
In order to determine your ongoing fitness to work in a Safety Sensitive Position the medical assessment is required as soon as possible but not later than 6 months of the date of this letter.
In the face of this letter addressed to its members, with the grievance scheduled to be heard on the merits on March 12, 2012, the Union’s representative requested interim relief from this Arbitrator. Following a conference call hearing held on December 20, 2011, pursuant to my jurisdiction under section 60 of the Canada Labour Code, I dealt with the Union’s request for “… an interim order to suspend the implementation of the Fitness to Work Policy”, including suspending the requirement to have current Diesel Mechanics, Diesel Trainees/Apprentices and Diesel Maintainers undergo mandatory medical assessment until the grievance had been heard on its merits. Upon hearing the parties I ruled that only those employees among the group of seventy-nine who received the medical assessment packages who had successfully completed STOC qualifications should be required to complete their medical assessments as directed, on or before the March 31, 2012 deadline. On an interim basis, those employees who were not then STOC qualified would be relieved of that obligation, pending the hearing of the merits of the grievance.
The Union does not dispute that work which involves the movement of locomotives, including such movements within the confines of shop tracks, is properly recognized as safety sensitive. It appears that on that basis it had no objection to the former position of Diesel Attendant, or more recently Diesel Service Attendant, being designated as safety sensitive and to that extent subject, for example, to the Company’s drug and alcohol testing policy. In the instant case, however, it questions the legitimacy of the designation attaching to the position of Diesel Mechanic. Its representative argues that the 700 Diesel Mechanics within the bargaining unit will perform varying amounts of work which involves the operation of a locomotive, some of them on an extremely occasional basis. He questions the basis upon which all DMs, some of whom may move a locomotive only a few times in a given year, should be swept into the category of safety sensitive employees and made subject to alignment medical assessments and the application of the Company’s substance policy, a policy which would extend to all of their duties and responsibilities. He stresses that for many years the parties have accepted that the duties generally performed by Diesel Mechanics, formerly designated at locomotive mechanics, were not such as to justify them being subject to drug and alcohol testing under the Company’s substance abuse policy. He questions how it can be that, for example, an employee in the DM classification, who performs virtually the same work as he or she has performed for years, save perhaps to operate a locomotive on one or two occasions a year, can now be made the subject of a substance testing policy which applies to all of the duties which they now perform.
By way of historical perspective, the Union’s representative stresses that the Company’s fitness to work medical policy in the year 2000 designated as safety sensitive three categories of employees: Engine Attendants and Engine Attendant Helpers, Track Mobile Operators and Track Mobile Helpers, and Auxiliary, Mobile and Shop Crane Operators rated over 60 tons. Those positions, he submits, clearly involved core responsibilities which occupied a substantial part of an employee’s working time, which were indisputably safety sensitive. He submits that the circumstances of 700 DMs, some of whom may frequently operate locomotives and many of whom may seldom do so, is a substantially different situation.
The Union’s representative submits that the current treatment of Railcar Mechanics makes his point. As a general rule Railcar Mechanics are not viewed as being employed in a safety sensitive position. However, when they are called upon to perform safety sensitive duties, like operating a track mobile or a mobile shop crane of over 60 tons, they are then deemed to be in a safety sensitive position. Railcar Mechanics who perform box car repairs, for example, or who do hand billing work, are excluded from the safety sensitive list as they are not assigned safety sensitive duties.
The Union next challenges what it describes as the excessive intrusiveness of the Fitness to Work Medical Assessment. It cites to the attention of the Arbitrator the decision in Monarch Fine Foods Co. Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647 (1978) 20 L.A.C. (2d) 419 (M.G. Picher) where the following passage appears:
The right of employers to order their employees to submit to an examination by a doctor of the choice of the employer must depend on either contractual obligation or statutory authority.
In that award the arbitrator went on to comment: “Normally, where an employment relationship is governed by a collective agreement, the authority of an employer to require an employee to submit to a medical examination must, apart from statutory authority, be either expressed or implied in the collective agreement.” The Union submits that there is no such authorization in the instant collective agreement. Simply put, the Safety Sensitive Alignment Medical Assessment, a copy of which is filed in evidence before the Arbitrator, seeks to establish an exhaustive list of all current and past medical health problems which may have been experienced at any point in the employee’s lifetime. In addition to asking the employee whether he or she has had any of an exhaustive litany of recognized illnesses and/or undergone any surgery, and if so why, it further asks whether an employee uses tobacco, marijuana or hashish, or any recognized illegal narcotics, with details as to the amount and the date they were last used. In addition to questions about vision and hearing, the medical questionnaire further canvasses any history of disorders of the following types: central nervous system, cardiovascular, endocrine, respiratory, gastrointestinal/genitourinary, musculoskeletal, psychiatric, sleep disorders as well as any substance use disorders and current medications.
Additionally, the Union’s representative takes severe exception to the release of information which an employee is required to sign as part of the medical examination. The language of the release is as follows:
I declare that the information I have provided or will be providing to the examining physician is truthful and complete. I understand that if I knowingly have provided false information or have not declared a medical condition, I will be subject to action by Canadian Pacific (CP) up to and including dismissal.
I acknowledge that during my employment, if any facts suggest that I have provided false information or not declared a medical condition as noted above, I may be removed from service and subject to formal investigation, which may result in action up to and including dismissal. I hereby consent to the release by CP’s Occupational Health Services, OHS, of all relevant medical reports, documentation or other information in its possession to CP’s Industrial Relations Department and to any investigating officer for the purpose of this investigation. This is valid throughout my employment at CP.
The employee is further required to give the following general consent to the release of medical information:
I consent for any physician, hospital, medical clinic or other health service provider to release to CP’s OHS any information concerning my medical condition, past or current, that may constitute a threat to safe railway operations. I also consent for representatives from CP’s OHS to discuss any details of this assessment with my physician(s). I understand that my responses will be reviewed by a nurse or physician and that further medical assessment may be required. This consent is valid for twelve months from the date of signature.
In the Union’s submission the extent of the medical information required far exceeds what might be necessary for legitimate employer safety concerns and can fairly be characterized, as its representative puts it, “… more about providing a health fingerprint for the employer and labour relations, for the purposes of baselining the individual’s current and prospective health profile and has little if anything [to do] in regards to safety.” The Union submits that it is simply unreasonable to ask that degree of information of an employee who, as with many of the DMs being canvassed, may have twenty or twenty-five years of service with the Company, merely because the Company no longer has that individual’s original pre-employment medical records.
I turn to consider the merits of the dispute. In my view, from a certain perspective, the concerns of the Union are understandable. For decades employees performing the core functions of the Diesel Mechanic position, under the prior designations of Locomotive Mechanic or Locomotive Electrician, were not considered to occupy safety sensitive positions so as to make them subject to the Company’s substance testing policy. They are now being told that because they can be required to operate locomotives in the shop track environment, they occupy safety sensitive positions and, in addition to ensuring that the Company has full medical information in relation to their past and current medical condition, they are now liable to substance testing under the Company’s policy. As the Union’s representative eloquently explains, that outcome may be particularly hard to swallow for those among the DM classification who work in locations or work assignments where being asked to operate a locomotive may be a relatively rare event. For some of the incumbents in the Diesel Mechanic classification there may be an understandable perception that the change in their status to safety sensitive employees is a case of the tail wagging the dog.
However, I am also cognizant of the Company’s concerns. For what can only be considered legitimate business purposes, it has decided to effectively phase out the position of Locomotive Attendant. It consciously made the choice that Engine Attendants, reclassified as Diesel Service Attendants or DSAs, whose principal endeavour in the workplace was the hostling of locomotives, represented a production inefficiency. It placed the incumbents in that category on notice that they had the opportunity to upgrade their skills to become Diesel Mechanics and that, failing their willingness to do so, they would be red circled for life in the DSA classification, it being understood that no further DSAs would be hired and that through attrition the position would effectively disappear. From the standpoint of productivity, it obviously made more sense for the Company to move in the direction of having locomotives moved in the shop environment by employees with the more broad-shouldered qualifications of Diesel Mechanics rather than maintain the cost and inefficiency of maintaining less qualified dedicated hostlers on its payroll. As is evident from the conflicting perspectives of the parties, the instant dispute is a paradigm of the tensions which may well be inevitable in a workplace which is evolving towards a more highly qualified workforce.
What of the Union’s objections with respect to the alleged intrusiveness of the Company’s Fitness to Work Medical Assessment? I must confess to some difficulty with its position. Firstly, it must be stressed that for the great bulk of employees in the DM position, the Company is making no request that they undergo a medical assessment. As noted above, of 700 employees in the classification, only 79 received Alignment Medical Assessment notices. That is because the Company can refer to the pre-employment medical assessments taken by the balance of the employees, said to number 621. Unfortunately, with respect to the 79 employees required to undergo new assessments, there are no medical records retrievable in respect of them in the Company’s possession.
In approaching this issue, I consider it critical to recognize at the outset that no one disputes that the operation of locomotives is a safety sensitive function. Indeed, the Union appears to have accepted without dispute that the former designation of Locomotive Attendant and the reclassified Diesel Service Attendant, whose core functions involved moving locomotives, were safety sensitive positions. The simple fact is that operating a diesel locomotive, in any setting, involves substantial safety issues, and that within the confines of shop premises it must be viewed as a safety sensitive function.
How, then, can the Company be faulted for ensuring that it has in its possession full medical records to confirm the fitness to work in that safety sensitive function for any employee who will be required to do so? In my view, the Company is not only justified but obliged to secure that information, so as to be able to ensure that employees so assigned are medically fit to perform the safety sensitive functions of operating locomotives within its shops.
What of the release which employees are required to sign? In my view it is extremely important to understand the limited scope for which medical information is authorized for release by the employee’s agreement. It is therefore useful to consider the language of the release at it appears on the face of the Safety Sensitive Alignment Medical Assessment form reproduced above.
Paramount in the release is the obvious concern of the Company to ensure a full and unqualified disclosure of all medical history and medical conditions on the part of the employee. As is evident from the text, it is only in the context of an investigation as to whether the employee has concealed facts or provided false information, that he or she consents to the release by OHS of medical information to the Company’s Industrial Relations Department “for the purpose [of] this investigation”. In other words, medical information cannot pass from OHS to the Company’s Industrial Relations arm absent a very narrow condition, namely that there are reasonable grounds to believe that an employee has withheld or falsified medical information, and secondly that an investigation in respect of that allegation has been undertaken. In my view it must be understood as implicit that the release of medical information in that limited circumstance must be exercised so as to maintain the confidentiality of the information so disclosed and to limit it to the express purpose of the disciplinary investigation which is undertaken. The Industrial Relations Department is clearly not at liberty to use it or communicated it for any other purpose.
Nor can I see anything offensive in requiring an employee to consent to the release by any physician, hospital, clinic or other health service information which may establish “… a threat to safe railway operations.” Medical privilege is important, but it is not unqualified. Medical information which is reasonably known to possibly impact the health and safety of others is information whose disclosure may properly trump the general privacy considerations which underlie medical privilege. In the Arbitrator’s view the situation at hand is somewhat analogous to those federal regulations which, for example, require medical practitioners to disclose to the appropriate authorities that an airline pilot suffers a condition which could affect his or her abilities to safely operate an aircraft.
On the whole, therefore, I am not satisfied that the consent to release medical information which must be signed by an employee as part of the Safety Sensitive Alignment Medical Assessment is inappropriate or overly intrusive with respect to privacy rights. In my view it represents a fair balancing of interests to ensure the completeness and reliability of any medical information provided by an employee or his/her physician.
In his submission the Union’s representative invoked the decision of this arbitrator in Monarch Fine Foods Co. Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647 (1978) 20 L.A.C. (2d) 419 (M.G. Picher). It must be recalled that that case involved an employer who doubted the explanation of an employee for the extension of his vacation by reason of what the employee claimed was an accident and physical injury sustained while on holiday. In essence the employer sought to have the employee medically examined as a form of lie detector test to determine whether the injury which he claimed had in fact occurred. It is in that context that the arbitrator adopted the strict common law analysis whereby an employer cannot effectively commit a medical assault on an employee, and concluded that any medical examination must be by statutory mandate or contractual agreement. It is also significant to note that in SHP 530, involving the extensive review of CN’s drug and alcohol testing policy, the arbitrator expressly declared that the strict common law approach reflected in Monarch Fine Foods is not appropriate in dealing with the issue of drug and alcohol testing in a highly safety sensitive industry. Rather, as is reflected in that award, the balancing of interests approach is to be preferred. In my view a balancing of interests is of the essence of what the Company’s policy seeks to do in the instant case. Employees who will be required to perform safety sensitive functions in the operation of locomotives are not required to undergo any medical assessment if the Company is already in possession of that information with respect to them, including their pre-employment medical assessment. It is only where no such records are available, in the case of some seventy-nine employees, that the requirement for Alignment Medical Assessments has been resorted to.
The ultimate and central question in this dispute is whether Diesel Mechanics who will be called upon to operate locomotives, some more frequently than others, truly occupy a safety sensitive position which justifies both their medical assessment and their being subject to the Company’s substance detection policy. In effect the Union argues that because many of them may operate a locomotive only very occasionally, they should not be viewed as occupying a safety sensitive function. In support of that argument the Union’s representative refers to a number of awards, most particularly Continental Lime Ltd. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. D575, an apparently unreported award of Arbitrator Martin H. Freedman, dated March 15, 2002. The arbitrator in that award was called upon to assess the safety sensitivity of a number of positions in a lime plant and quarrying operation at Faulkner, Manitoba. Among the functions considered was the drag line operator position. That job involved dragging a bucket and casting out solids. Finding that the work in question was done only two to three times every two weeks, Arbitrator Freedman concluded that the work did not have a sufficient “significant involvement in the operator’s job so as to make it safety sensitive.”
In my view, while the issue of “significant involvement” has not received extensive arbitral consideration within the drug testing jurisprudence, that issue has implicitly been touched upon, nevertheless. For example, in SHP 530 the definition of risk-sensitive positions in CN’s policy, which was not challenged, reads as follows:
xi) Risk-Sensitive Positions
Risk-sensitive positions are those which the company determines have a key and direct role in the operation where impaired performance could result in a significant incident affecting the health and safety of employees, customers, customer’s employees, the public, property or the environment. This includes all employees who are required to rotate through or regularly relieve in risk-sensitive positions.
It is noteworthy that the concept of occasional involvement in risk-sensitive functions has been addressed in other awards. In JD Irving Ltd. and Communication, Energy & Paperworkers Union, Locals 104 and 1309, an unreported award of this Arbitrator dated July 26, 2002, the definition of safety sensitive position includes the sentence “This includes all employees who are required to rotate through or regularly relieve in any safety sensitive positions.”
In considering this aspect of the Union’s submission, it seems to me that its representative’s argument comes close to suggesting that the incumbents in the DM positions are only a little bit pregnant. In matters of safety, boards of arbitration should err on the side of caution. There is no firm evidence before me to show the frequency with which all or some of the 700 DMs, who are expected to be STOC qualified within a year, will or will not operate locomotives. What is clear is that DSAs are a vanishing breed. None are being hired and with attrition the day will come when only Diesel Mechanics will be assigned to operate locomotives on the Company’s shop tracks. Whatever the frequency of such work, it will be part of their core functions.
As stressed above, I am satisfied that that adjustment by the Company is being implemented for legitimate and valid business considerations. I do not consider this to be a case of sprinkling a small amount of safety sensitive duties into the mix of a job classification simply to convert it to safety sensitive status. An employee who is trained and remains meaningfully on call to perform safety sensitive functions must be recognized as having safety sensitive status, regardless of the frequency of the functions. The Company’s desire to have all Diesel Mechanics able to answer the need to operate a locomotive on shop tracks is a legitimate and understandable business objective, particularly in light of its decision to effectively phase out Diesel Service Attendants by attrition.
However, I do see merit in the Union’s argument that DMs who are not STOC qualified should not be classified as safety sensitive. That is obviously so as they cannot operate locomotives and are excluded from the very job function that is safety sensitive. That aspect of the grievance must therefore be allowed.
In the result, I cannot see in the Company’s general policy any violation of the collective agreement. The positions of all Diesel Mechanics qualified to operate locomotives are properly classified as safety sensitive and the related medical assessment requirements and disclosure consent obligations are not unreasonable.
On the foregoing basis this matter is remitted to the parties. I retain jurisdiction in the event of any further dispute respecting this award.
Dated at Ottawa, Ontario this 30th day of March, 2012.
“Michel G. Picher”
Michel G. Picher