AWARD
1. While the parties agreed to my appointment to hear the grievances, GLR-CN31-09, GLR-CN35-09 AND GLR-CN34-09 (“the grievances”), this award concerns preliminary objections to my jurisdiction for grievance GLR-CN35-09.
2. CN has a Policy to Prevent Workplace Alcohol and Drug Problems (“the policy”). It is a policy that is updated from time to time. A re-writing occurred in 2004. As part of the policy, if an employee loses driving privileges, the employee is required to attend and subject themself to a company arranged, medical assessment. The grievance contends that this requirement is overbroad and contrary to the collective agreement and the Canadian Human Rights Act, RSC 1985, c H-6. The grievance claims that employees should not be required to submit to what the Union regards as intrusive medical, biological, physical and psychological assessments, arranged by the Employer. The substantive issue is whether the Employer can require employees, whose driving licenses are suspended, to attend an assessment, that might include a medical assessment by a physician appointed by the Company.
3. The Union’s ex parte statement of the issue reads [with paragraph numbering added]:
1. It has recently come to the attention of the Union that the company has made requests to members of the bargaining unit who have reported a loss of driving privileges as a result of an impaired driving offence or whose license has been suspended, that not only must [they] notify their supervisor within one working day they must report to a company designated medical centre within three working days of the date of the charge.
2. The company designated medical professional will undertake an assessment which includes a comprehensive series of medical, biological, physical and psychological assessments.
3. If the employee fails to report the loss of driving privileges or refuses to attend the company arranged medical assessment, it will be considered a violation of the CN’s Policy to Prevent Workplace Alcohol and Drug Problems and the employee will be subject to corrective action up to and including dismissal. This request applies whether the employee occupies a “safety sensitive” or “non safety-sensitive” position[s].
4. It is the Union’s contention that the Company’s request under the CN’s Policy to Prevent Workplace Alcohol and Drug Problems is overbroad and contrary to the collective agreement and the Human Rights Act. The union contends that the demands on employees regardless of whether they occupy a “safety sensitive” or “non safety-sensitive” position constitutes an unreasonable exercise of management rights.
5. The Union seeks an order that the company cease and desist from directing employees who report a loss of driving privileges as a result of an impaired driving office or whose license has been suspended to undergo a medical assessment which includes a comprehensive series of medical, biological, physical and psychological assessments.
6. The Company disagrees with the Union’s contention and has declined the Union’s grievances.
4. The Company disputes aspects of the Union’s Statement. The Company disputes, in paragraph 1, when the Union acquired knowledge of the Employer’s policy regarding reporting loss of a driver’s license and medical assessment. The Union says this occurred “recently”. The Company says the Union has known since 1997 when the policy was first issued.
5. Regarding paragraph 2, the Company says the designated medical professional will undertake an assessment of the employee based on their medical history and the information provided by the employee. In other words, the assessment will not necessarily include “a comprehensive series of medical, biological, physical and psychological assessments”.
6. The Company says this of the Union’s paragraph 3:
We disagree with the statement made by the Union in paragraph 3. The reference in the D&A Policy to “discipline up to and including discharge” is in regard to failing to report the loss of a driver’s license. … A refusal to cooperate with a medical assessment in a non-safety sensitive position is not grounds for discipline but may result in the employee being restricted from a position which requires the operation of vehicles.
7. As regards paragraph 5, CN says:
… it is only employees whose duties require a valid driver’s license or who operate railway equipment that are required to report a loss of driving privileges. No other employee is required to report loss of driving privileges.
The relevant policy provisions
8. The following provisions from the policy are relevant if the substance of the grievance is to be addressed:
Impaired Driving Charge or Convictions
It is prohibited to be on duty or to be in control of a CN vehicle anytime while under the influence of alcohol or drugs, including the after-effects of such use. All employees who drive a company vehicle, or drive on company business are required to maintain a valid driver’s license. Any person required to maintain a valid driver’s license must report the loss of the privilege to drive to their supervisor.
For employees who require a valid driver’s license in the performance of their duties or for employees who operate railway equipment and who lose the privilege to drive off-duty, off CN premises and not in a CN vehicle, the following provisions will apply:
Impaired Driving Charge
Any employee in these circumstances who has been charged with an impaired driving offence or whose license has been suspended (including but not restricted to blowing over the legal BAC for driving in the jurisdiction where the charge occurred, driving while impaired, or refusal to blow into a breathalyser) must inform a supervisor within one working day and must report to a company-designated medical centre within three working days of the date of the charge.
A medical professional will undertake an assessment to determine if there is a need for a structured assistance program. If there is a need, the employee will be directed to a treatment and rehabilitation program through Medical Services. Medical Services will determine whether or not the individual will be allowed to drive or operate equipment on behalf of the company until the limitation is lifted. In cases where an employee is prohibited from doing their job pending assessment, they will be assigned alternative duties if available and appropriate. In those cases where employees fail to report the charge and the company becomes aware of the situation, they will be subject to corrective action up to and including dismissal.
Preliminary objections to the grievance
9. The Employer’s preliminary objections to my hearing the grievance are the following:
· No valid grievance is currently in the system for the Arbitrator to adjudicate;
· Res Judicata and/or Issue Estoppel applies in regard to Arbitrator Michel Picher's Award in SHP 530 (also cited as: Canadian National Railway Co. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [2000] C.L.A.D. No. 465; (2000), 95 L.A.C. (4th) 341 (M. Picher)), (“SHP 530”);
· The Union’s challenge to the Policy is 14 years untimely;
· Finally, and only if the Arbitrator does not support the Res Judicata, Issue Estoppel and timeliness objections, it is the Company’s position that the Arbitrator does not have jurisdiction to adjudicate on the substance of the Policy. Arbitrator Picher stated in SHP 530 that he retains jurisdiction on any aspect of the Award. In the alternative, the Company would argue that the issue is subsumed with a grievance that Arbitrator Picher remains seized of.
10. The Union and its Local 100 are party to Collective Agreement #12 with the Company. The Agreement in effect during the events that gave rise to the grievances was for the period January 1, 2007 though December 31, 2010. The collective agreement was renewed earlier this year, coming into effect on January 1, 2011 and expiring on December 31, 2014.
11. The CAW and its Local 100 represent nearly 1,800 shopcraft employees across Canada whose primary responsibility is to inspect, maintain and repair railway rolling stock and the locomotive fleet.
12. From 1971 onwards the Company had policies to address alcohol consumption and alcoholism. The policy addressing drugs and alcohol in the workplace, the subject in this case, was first introduced by the Company on March 15, 1997. The Union launched a comprehensive challenge to it. It filed a grievance on March 27, 1997. It gave detailed submissions on May 13, 1997, and amplified those submissions on November 7, 1997.
13. In the Union’s amplified submissions of November 7, 1997, the Union drew attention to the paragraph in the policy requiring an employee whose driving privileges were lost or suspended due to an impaired driving charge to immediately report such loss to their supervisor. The Union submitted this requirement was unreasonable. It seems the Union did not specifically refer to the issue the Union now raises – the requirement to undergo a medical assessment. The focus in the amplified particulars was on the requirement to report the license suspension. It appears, further, from my reading of the eventual arbitration award on the merits (SHP 530) that the Union did not make any submissions on this issue during the arbitration. As will be seen below, the only reference in the award to impaired driving charges is in Arbitrator Picher’s summary of his conclusions, at sub-paragraph 15 thereof:
15. By agreement, I also stay any determination of issues raised by the Intervener with respect to the obligations and treatment of employees involved in impaired driving charges or who have lost their driving privileges, pending further discussion of those issues between the parties.
14. This reference is not to any submissions made by the Union, but to a submission made by the intervenor, described below.
15. The Union’s first challenge to the policy in 1997 alleged violation of Rule 35 of Agreement 12 [Agreement 12 being the parties’ collective agreement]. Rule 35, Safety and Health, requires the Master Joint Committee on Safety and Health to have input and make recommendations before the Company finalizes safety and health policies. The Union argued that the then new drug and alcohol policy was a health and safety policy and so should have gone before the Committee. This preliminary raid on the policy was rebuffed in Arbitrator Picher’s decision, SHP 449, on September 29, 1997. Arbitrator Picher found that a latent ambiguity existed in the language of Rule 35. He concluded from the evidence that the parties had not intended the policy to be treated as a safety and health issue for consideration by the Master Joint Committee on Safety and Health. The Arbitrator found that the Committee was established to oversee policies on “matters touching directly on workplace health and safety, as they have been traditionally understood and have developed in furtherance of the occupational health and safety provisions found in Part II of the Canada Labour Code”. Accordingly, the Arbitrator concluded that the parties had treated issues of substance abuse as separate from issues of health and safety that fell under the Master Joint Committee of Safety and Health.
16. The Union’s substantive challenge to the policy then followed. That challenge was determined in Arbitrator Picher’s comprehensive review of the policy in light of the Union’s contentions, in SHP 530. The Canadian Council of Railway Operating Unions (United Transportation Union) (“the UTU”) intervened following an invitation by the Company to all unions representing employees. The case was heard on several days over a long period in 1998 and 1999. The 154-page award (in the SHP 530 version) was issued on July 18, 2000. Many topics relating to the policy were addressed in the award. Arbitrator Picher declared portions of the policy to violate provisions of the collective agreement and so struck them. He upheld other portions.
17. There is a dispute between the parties as to the extent to which SHP 530 addressed the substantive issue the Union now brings forward. I refer to those portions of SHP 530 that directly or arguably address the issue. I refer also to those portions of SHP 530 in which Arbitrator Picher describes his jurisdiction and his retaining jurisdiction to address issues at a later date:
2 The Company's Policy to Prevent Workplace Alcohol and Drug Problems is extensively described in a booklet entitled "Prevention, Our Safe Choice" provided to all managers and employees of the Company. Its contents are briefly summarized as follows at p. 9:
For many years CN has had a variety of programs and practices pertaining to alcohol and drug use. This policy is intended to consolidate these programs and provide a comprehensive approach across all CN's workforce. It clearly defines who is covered, and the standards and consequences of violation.
This policy --
- …
- requires employees who must have a valid driver's license to report impaired driving charges or convictions.
…
12 The disciplinary consequences of violations of the policy are specified at pp. 38-39 of the booklet, in the following terms:
Consequences of a Policy Violation
i) General Provisions
If any employee violates the provisions of this policy or does not meet the company's satisfactory standards of work performance as a result of alcohol or other drug use, appropriate corrective action will be taken.
…
ii) Policy Violations
a. Violations
The appropriate corrective action in all cases depends on the nature of the violation and the circumstances surrounding the situation. The severity of the violation will warrant entering the corrective action process at different levels.
Some violations are considered sufficiently serious that dismissal is warranted on a first occurrence. Examples include, but are not limited to, trafficking in or possession of illegal drugs or consumption of beverage alcohol or illegal drugs on company premises, while on company business or when driving a company vehicle or equipment.
Any confirmed violation of this policy by individuals holding risk-sensitive or specified management positions will result in dismissal from employment. Any confirmed violation of this policy by other employees, unless there are grounds for dismissal as noted above, will result in progressive corrective action, with increasing severity depending on the seriousness of the violation.
b. Positive Test Results
For individuals in risk-sensitive or specified management positions a verified positive test result, or refusal to complete the testing process set out under this policy, will result in immediate dismissal whether or not the alcohol or drugs were actually consumed on company business or premises, or when on duty.
For all other employees, a verified positive test result will lead to corrective action up to and including dismissal.
Depending on the circumstances, employees (including those covered by the By-Pass Agreement) may be permitted to continue their employment with the company. Such employees will be advised of the conditions governing their continued employment which will include at a minimum, the following:
- assessment by a substance abuse professional;
- completion of any recommended treatment program;
- a negative result on their return-to-duty alcohol and drug test;
- unannounced testing for a minimum period of two years and up to five years;
- adherence to any rehabilitation conditions or requirements;
- no further positive test results and/or policy violations during the monitoring period; and
- maintenance of job performance according to expectations.
Where in the opinion of a qualified substance abuse professional there is a risk that an employee could not do their job safely, the individual may be assigned to alternate duties if available and appropriate.
c. Failure to Submit to a Test
For all employees, failure to report for a test within the designated time frame, refusal to submit to a test, or any attempt to tamper with a test sample is considered a policy violation.
Failure to submit to a test demand made by a peace officer may result in criminal prosecution.
iii) Off-Duty Activities
In addition to the above, CN will investigate any situation where off-the-job actions involving alcohol or drugs (e.g. impaired driving convictions, conviction for trafficking, bootlegging, etc.) may have implications for the workplace and will take appropriate action under the circumstances.
…
62 It may be noted that at the hearing all parties agreed that the initial stage of the hearing is appropriate for dealing with matters of principle and general application arising from the policy. It is agreed that more specific questions as to whether particular positions or classifications within a bargaining unit are properly classified as risk-sensitive for the purposes of the policy are to be held in abeyance, and dealt with in a subsequent phase of the hearing. The Arbitrator therefore notes the parties' agreement and retains jurisdiction to deal with such issues of that type as may remain outstanding following the issuing of this award and any further discussion between the parties.
…
81 Firstly, as a matter of record, the Company notes that because of the broad nature of its drug and alcohol policy, which applies to all employees of the Company, including unionized employees in a number of bargaining units, all trade unions were invited to make submissions on an intervener basis in these proceedings. It notes that the only unions which chose to intervene are the United Transportation Union, which represents conductors, trainmen, yard foremen, yard helpers and yardmasters, and the International Brotherhood of Electrical Workers, representing signals employees, the latter group having in fact withdrawn during the proceedings. It is the Company's position that all unions which had notice of these proceedings are foreclosed from otherwise challenging the Company's policy.
…
143 Counsel questions the manner in which the policy has been implemented, particularly as relates to running trades employees. For example, he questions a letter issued by the Company on April 11, 1997 (General Notice No. 041) which effectively warned employees engaged in the operation of trains that the presence of any trace of illegal drugs or alcohol in the body, as found through testing, would be cause for immediate discharge. The same letter, counsel submits, placed employees on notice that they are under an obligation to self-report any charges against them for impaired driving, failure of which could also result in immediate discharge.
…
172 By agreement of the parties, this award is limited to issues of general principle relating to whether all or part of the policy violates the provisions of the collective agreements or the Canadian Human Rights Act. Should the policy be upheld in whole or in part, a resulting issue concerns the determination of those jobs within the bargaining units which are properly classified as risk sensitive. The specifics of which positions are risk sensitive, a matter which may come into dispute, have been agreed to be dealt with at a later stage of the hearing process.
…
CONCLUSION
241 For all of the foregoing reasons the grievance of the Union and submissions of the Intervener are allowed in part, and disallowed in part. By way of summary and without derogating from any other findings herein, the Arbitrator finds and declares the following:
1. The policy's rule which stipulates automatic discharge for an employee who violates the policy is unreasonable, and contrary to the just cause provisions of the collective agreements, and is therefore null and void.
2. A positive drug test is not conclusive of impairment when on duty, subject to duty or on call. It does not, therefore, of itself constitute just cause for discipline or discharge. It may, however, become material evidence which, in light of other evidence, supports inferences of impairment that do justify discipline or discharge.
3. For employees occupying risk sensitive positions, the Company may, under pain of discipline and subject to principles of just cause, conduct drug and alcohol testing by breathalyzer and urinalysis in circumstances of reasonable grounds, including following any significant accident or incident, and as part of a medical examination to determine fitness for duty upon transfer or promotion into a risk sensitive position. Such testing may also be part of any conditions or terms of reinstatement negotiated with the employee's bargaining agent. (For the purposes of clarity, post-reinstatement drug testing agreements can, by consent, involve random, unannounced drug testing, to be administered in a non-abusive fashion.)
4. While the Company has established a reasonable basis for the drug and alcohol testing of risk sensitive employees, it has not demonstrated, by a balancing of interests, that such testing is a reasonable or necessary incursion into the privacy of employees who hold non risk sensitive positions, save in the circumstance where they may be considered for promotion or transfer into a risk sensitive position, or as an agreed condition of reinstatement.
5. To the extent that the wording of the policy might be interpreted to suggest that the Company negotiates reinstatement contracts of employment with employees without consultation with their bargaining agent, it would be in violation of the collective agreements and the exclusive bargaining rights of the unions concerned. No such agreement can be validly negotiated without the agreement of an employee's bargaining agent.
6. That part of the policy which would foreclose the possibility of a reinstatement contract with employees with less than two years' service is contrary to the duty of accommodation mandated by the Canadian Human Rights Act, as relates to employees whose discharge is causally related to a disability as defined under the Act. The rule is not unreasonable, however, with respect to employees who are not disabled, although it remains open to the employer and the bargaining agent to negotiate the reinstatement of any employee on lawful terms which they agree to be appropriate.
7. The position which the Company takes as regards the specific content of a reinstatement agreement is only that, and the statement of its position in that regard within the policy is not a violation of any collective agreement.
8. The requirement of the policy for drug or alcohol testing of employees returning from a leave of absence of six months or more has not been demonstrated to be related to any legitimate employer interest, and constitutes an unreasonable exercise of management's rights that is unduly intrusive into the privacy of individuals.
9. The cut-off level of .04 BAC as reflecting impairment for risk sensitive employees is reasonably supported by scientific and medical opinion, and is a permissible standard whose application does not violate the proper exercise of management's rights.
10. The cut-off level of .02 BAC is not shown to relate to impairment and is therefore an unreasonable and unsupportable exercise of management's rights, and must be declared null and void as being in violation of the collective agreements.
11. There is nothing in the policy with respect to searches and the role of the CN Police which, on its face, violates the collective agreements, human rights legislation or any provision of the Canadian Charter of Rights and Freedoms.
12. The policy's provisions with respect to employees obtaining information in relation to the effects of prescription drugs, and reporting concerns to the Company or Medcan in circumstances of uncertainty are reasonable.
13. The requirements within the policy for employees to be vigilant with respect to the abuse of substances by other employees, and to bring violations of the policy to the attention of Company officers, is reasonable and not in violation of any collective agreement provision.
14. The parties are agreed that the treatment of employees confidentially and voluntarily referred to the EFAP, and their possible eventual involvement in a continuing employment contract, as outlined at pages 48-49 of the policy, bears further clarification. The Arbitrator therefore stays any determination of that issue, refers the matter to the parties for their consideration, and retains jurisdiction to resolve it should they fail to agree.
15. By agreement, I also stay any determination of issues raised by the Intervener with respect to the obligations and treatment of employees involved in impaired driving charges or who have lost their driving privileges, pending further discussion of those issues between the parties.
242 The Arbitrator retains jurisdiction with respect to the interpretation or implementation of any aspect of this award.
18. Since SHP 530 was issued, the Company and the Union have renewed the collective agreement four times.
19. Subsequent to SHP 530, the parties endeavoured to reach agreement on what positions were safety sensitive (or risk sensitive), and which not. They entered into a Letter of Understanding on April 29, 2002 on the positions to be considered safety sensitive, therefore subject to pre-assignment, post-accident/incident and reasonable cause drug and alcohol testing (the “2002 Agreement”).
20. Thereafter the parties discovered that they fundamentally disagreed on the proper interpretation of the 2002 Agreement. That disagreement was referred back to Arbitrator Picher for decision. He issued an award in 2010, SHP 645. He found that the 2002 Agreement was based on a fundamental mutual mistake and he declared the 2002 Agreement a nullity. He remains seized to determine the distinction between safety sensitive positions and non-safety sensitive positions.
21. The Company revised the policy and re-issued it in 2004.
22. The substantive issue before me arose as an aspect of grievances filed by the Union on behalf of an individual employee: GLR-CN31-09 of April 22, 2009, GLR-CN35-09 of May 1, 2009 and GLR-CN34-09 of May 8, 2009.
23. In March 2009 an employee on annual vacation was stopped at a RIDE spot check. When asked to provide a breath sample, the employee refused and was immediately issued with a 90-day Administrative Driver License Suspension (ADSL) under s.48(3) of the Ontario Highway Traffic Act, RSO 1990, c H.8.
24. Prior to the grievor returning to work from annual vacation, the employee contacted their supervisor to advise that they would be without a valid driver’s license for the next 90 days, as a result of the roadside suspension.
25. A CN Occupational Health representative contacted the employee and, following a short telephone interview, advised that they would be contacting the employee’s Supervisor and informing them that the employee was fit for duty, though not allowed to drive any Company vehicles while at work.
26. A week later, the Company advised the employee that they would be required to submit to medical testing/evaluation by a physician of CN’s choosing, arranged by CN Occupational Health.
27. Thereafter the Union filed the grievances.
28. The portions of the grievances directly affecting the individual were resolved by the parties in confidential Minutes of Settlement concluded on October 28, 2011. As a result, grievances GLR-CN31-09 and GLR-CN34-09 were resolved. The parties agreed, notwithstanding the resolution of the individual employee features of the grievances, that the policy aspects of the grievances (the requirement to attend a medical assessment after a driver’s license suspension), contained in grievance GLR-CN35-09, would be pursued at the hearing which gives rise to this award.
Is a valid grievance currently in the system for the Arbitrator to adjudicate?
29. This position was not strongly advanced by the Employer. The grievances are within the system. The grievances were responded to by the Company. The Company raised objections, as described below, to the arbitrability of the grievances, but did not suggest that the grievances themselves lacked validity. The grievances were responded to for the individual circumstances of the affected employee, resulting in resolution of all aspects of the grievances affecting the individual.
30. In the circumstances, I find there is a valid grievance in the system between the parties.
Does res judicata and/or issue estoppel apply in regard to SHP 530?
31. Foremost res judicata and issue estoppel are equitable doctrines – they are intended to prevent an injustice, the injustice of allowing a party to relitigate an issue that has been resolved between the parties. The doctrines are a protection to a party from having to fight again a battle already resolved. Equally, if a party has not had the opportunity to assert a right for adjudicative determination, the party should not be deprived of it by the application of the doctrines. The discretion to apply the doctrines is to be done within the overriding considerations of fairness, natural justice and common sense: D’Aoust v. 1379202 Ontario Inc. (c.o.b. Automotive Edge), 2003 CanLII 38391 (ON SC), at ¶51.
32. Res judicata has two aspects: it bars a party from re-litigating an issue already decided in a previous proceeding; and it prevents a party from litigating a matter which it ought to have brought up in the earlier proceeding. The doctrine, including issue estoppel, is intended to give the parties finality when they have resolved an issue or had that issue adjudicatively determined. Three conditions are necessary: the dispute must be between the same parties; the matter in dispute must be identical in both proceedings, involving the same or an unaltered collective agreement; and the dispute, raised for the same purpose, must have been previously determined by adjudicative decision or resolved by agreement: Essar Steel Algoma Inc. and United Steelworkers, Local 225 (2008), 177 L.A.C. (4th) 183 (Stout); Toronto (City) v. CUPE Local 79 (2003), 120 L.A.C. (4th) 225 (S.C.C.), (2003) 3 S.C.R. 77; Canadian Union of Public Employees, Local 1253 v. Board of Management (King Grievance), [2006] N.B.L.A.A. No. 15 (Bladon), at ¶19.
33. Issue estoppel has the same purpose, to ensure the finality of an earlier adjudicative decision on the same subject matter between the same parties: Danyluk v. Ainsworth Technologies Inc., 2001 S.C.C. 44.
34. For this portion of CN’s argument, the Company takes two positions: one, SHP 530 decided the question raised in this case; the other, that the Union had the opportunity to raise the issue, in fact did so initially, then seems not to have pursued it in the SHP 530 arbitration. The Company says, in either event, res judicata applies.
35. As to the first position, as mentioned above, there is some reference to the loss of driving privileges in Arbitrator Picher’s final award:
15. By agreement, I also stay any determination of issues raised by the Intervener with respect to the obligations and treatment of employees involved in impaired driving charges or who have lost their driving privileges, pending further discussion of those issues between the parties.
36. I have reviewed the award and I can find no other reference to the issue. It appears that the intervenor raised the issue, but did not pursue it. There appears also to have been an agreement between CN, CAW and the UTU that the issues surrounding “the obligations and treatment of employees involved in impaired driving charges or who have lost their driving privileges” were stayed pending further discussion of these issues between the parties. Whether Arbitrator Picher retained jurisdiction on the issue, I address below.
37. As to CN’s second position, the CAW had the opportunity to raise the issue before Arbitrator Picher, but failed to do so, the parties’ agreement at the time to stay Arbitrator Picher’s consideration of the issue is a complete answer. The issue was not addressed at the time, by agreement.
38. So, it seems the issue of driving license suspensions for off duty conduct was before Arbitrator Picher, but, by agreement, it was not determined by him, and the parties agreed to stay his consideration of the issue, pending further discussion between them. Consequently res judicata and issue estoppel cannot apply because no decision has been issued, no determination has been made.
Is the Union’s challenge to the Policy 14 years untimely?
39. The Employer relies on Rule 27.9 of the collective agreement, dealing with grievances not progressed within the mandatory time limits:
27.9 A grievance not progressed within the time limits specified shall be dropped and shall not be subject to further appeal. Where, in the case of a grievance based only on a time claim, a decision is not rendered by the designated officer of the Company at Steps I or II within the time limits specified in such steps, the time claim will be paid. Payment under such circumstances shall not constitute a precedent, or waiver of the contentions of the Company in that case or in respect of other similar claims.
40. This is mandatory language: SHP 72, SHP 118, SHP 164 and CROA 3493. The Company submits there must be reasonable grounds for an arbitrator to extend the time limits for a union to pursue an otherwise untimely grievance. CN also refers to s.60(1.1) of the Canada Labour Code, RSC 1985, c L-2 – time limits can be extended only “if the arbitrator .. is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension”. The criteria for applying this discretion are described in Re Becker Milk Company Ltd. and Teamsters Union, Loc. 647 (1978), 19 L.A.C. (2d) 217 (Burkett) and CROA 3493.
41. The first question is whether the Union’s grievance is untimely. In one respect, the grievance is clearly not untimely and there is no need to extend time limits. The grievances filed in April and May 2009 were timely in relation to the events giving rise to them. The Company does not challenge the timeliness of the grievances in that respect. Its challenge is that the Union is not at liberty to re-raise an issue which was addressed (albeit not to final decision) in 2000, before Arbitrator Picher in SHP 530. In other words, the failure to pursue the policy issue now raised by the Union within a timely manner, i.e. in the context of SHP 530, makes the issue now untimely.
42. Whatever the Union did, or didn’t do, in the hearing of SHP 530 is superseded, in my view, by the agreement of the parties to stay the determination of issues arising from drivers’ license suspensions.
43. What, though, of the period since 2000? Much time has passed since then. The issue was left, in 2000, with the parties agreeing to stay any consideration by Arbitrator Picher of the issue. Should the Union not have brought it forward before now?
44. The Union’s explanation for why it now pursues the issue is that it did not arise previously. There was no reason to advance the issue earlier because no case warranted it. Circumstances occurred for an individual that gave rise to the grievances. Arbitrator Picher spoke of this in an award for the parties, Canadian National Railway Co. and C.A.W.-Canada, Local 100 (Re), [2008] 95 C.L.A.S. 68 (M. Picher), at ¶16, saying that unions do not necessarily have to grieve unilateral statements made by the Company,
… at least until such time as it might adversely affect an employee. Both sides to a collective bargaining relationship may engage in unilateral and self-serving statements as to what they believe their rights and obligations may be, without necessarily engendering an obligation on the other side to file a grievance in respect of an issue which is still theoretical.
45. The issue stayed before Arbitrator Picher could equally have been advanced by any of the parties (CN, CAW and the UTU). None of them chose to do so. I don’t think they had an obligation to do so merely to obtain a result. The Union now again raises the issue in the context of a real case, a real circumstance, in which an individual was required to submit to medical examination as a consequence of off-duty driving and driver’s license suspension. In my view, following the comments of Arbitrator Picher above, it was legitimate for the Union to wait for such a circumstance before reviving the issue, given the manner in which it was left in 2000.
46. So, I find it is not necessary for the Union to have to seek an extension of time limits under s.60(1.1) of the Canada Labour Code, RSC 1985, c L-2. The grievance is not untimely.
Has Arbitrator Picher remained seized under SHP 530?
47. This is the more compelling challenge made by the Company. The Company says that any dispute flowing from the policy must be referred back to the original trier of fact; it says, Arbitrator Picher is the sole arbitrator to determine whether an unchanged and previously adjudicated provision of the policy conflicts with the collective agreement or the law. Re O.P.S.E.U. and Ontario Public Service Staff Union (2004), 135 LAC (4th) 280 (Saltman), at p.3, states:
Here, there has been no disposition of the earlier grievance which would prevent my hearing the grievances at hand. Nevertheless, it seems that an Arbitrator ought not to assume jurisdiction to deal with a grievance which is the same as, or subsumed within, a grievance of which another Arbitrator is seised. …
48. Leaving aside, for a moment, the broader question of whether Arbitrator Picher remained seized of the issue in this case, there is some potential overlap between the grievance and the issue Arbitrator Picher is currently seized with. While the Union says that the policy does not distinguish in its requirements for driver’s license suspensions between those in safety sensitive positions and those not, the Company makes clear that only those required to have a driver’s license as part of their employment are covered by this aspect of the policy. Arbitrator Picher is engaged in the parties’ dispute over which positions are to be treated as safety sensitive, and which not. That issue may have a bearing on whether an employee is required to have a driver’s license as a condition of their employment.
49. The Union argues that the Company’s submission overlooks the notion of functus officio; the CAW contends that the Company would have it that SHP 530, issued in July 2000, is to be read more than the Arbitrator simply retaining “jurisdiction with respect to the interpretation or implementation of any aspect of this award”, as Arbitrator Picher said, but rather that Arbitrator Picher retains jurisdiction with respect to the interpretation or implementation of any aspect of the policy. Furthermore, the Union claims the Company would have it that not only does Arbitrator Picher retain jurisdiction over the implementation of SHP 530 and by extension CN’s 1997 Policy to Prevent Workplace Alcohol and Drug Problems, but that he retains jurisdiction on any and all matters pertaining to the Company’s post-SHP 530 policy, including the re-written 2004 policy or any subsequent revisions to the policy.
50. The Union argues that Arbitrator Picher being seized on all matters relating to the implementation, application, interpretation of the policy in perpetuity is contrary to the functus officio doctrine. It contends that Arbitrator Picher’s jurisdiction was exhausted, functus officio, upon the issuance of SHP 530, other than with respect to the single determination to be made on which employees are to be treated as safety sensitive, and which not, for the purposes of applying the policy.
51. As the Union argues, an arbitrator in a prior proceeding does not have jurisdiction over an issue that was not raised in the proceeding, nor over which the arbitrator did not expressly retain jurisdiction following the issuance of the award: St. John’s (City) and I.A.F.F., Local 1075 Re 2007, 169 L.A.C. (4th) 236 (Oakley), at pp. 242-244. An arbitrator will retain jurisdiction: to clarify the award to express its manifest intention, to complete an award, and to interpret it where the parties do not agree on its interpretation, but otherwise the arbitrator has no residual jurisdiction.
52. Although a long time has elapsed since Arbitrator Picher issued SHP 530, it is notable that the parties have returned in that time to Arbitrator Picher for the determination of the divide between those in safety sensitive, and those in non-safety sensitive, positions.
53. Many questions arise with respect to Arbitrator Picher’s retained jurisdiction. Firstly, relating to paragraph 15 of his conclusions, what did Arbitrator Picher intend by his staying “any determination of issues raised by the Intervener with respect to the obligations and treatment of employees involved in impaired driving charges or who have lost their driving privileges, pending further discussion of those issues between the parties”? Secondly, the issue in the grievance was arguably raised at the hearing in SHP 530, not by the CAW (though the CAW had referred to an aspect of it in correspondence prior to the arbitration hearing), but by the UTU. What implication does that have for Arbitrator Picher’s jurisdiction with respect to a dispute now between the CAW and the Company on the issue? Thirdly, how is paragraph 15 of Arbitrator Picher’s conclusions in SHP 530 to be understood in the context of his general retention of jurisdiction, “with respect to the interpretation or implementation of any aspect of this award”? Fourthly, to what extent is the issue subsumed by, or inseparable from, the issue currently before Arbitrator Picher as to which employees are in safety sensitive positions, and which are not?
54. At ¶62 of SHP 530, Arbitrator Picher said:
62 It may be noted that at the hearing all parties agreed that the initial stage of the hearing is appropriate for dealing with matters of principle and general application arising from the policy. It is agreed that more specific questions as to whether particular positions or classifications within a bargaining unit are properly classified as risk-sensitive for the purposes of the policy are to be held in abeyance, and dealt with in a subsequent phase of the hearing. The Arbitrator therefore notes the parties' agreement and retains jurisdiction to deal with such issues of that type as may remain outstanding following the issuing of this award and any further discussion between the parties.
The Arbitrator notes the parties' agreement and he retains jurisdiction to deal with such issues of the type described as may remain outstanding, following the issuing of SHP 530 and any further discussion between the parties. Fifthly, is the issue now raised by the Union one of the specific questions that Arbitrator Picher had in mind as part of his jurisdiction?
55. Sixthly, leaving aside paragraph 15 of Arbitrator Picher’s conclusions, did he remain seized of the issue in this case under his general retention of jurisdiction in SHP 530?
56. I consider these questions in the context of the principle described in O.P.S.E.U. and O.P.S.S.U. (Saltman), above. An arbitrator ought not to assume jurisdiction when the issue is appropriately subsumed in a grievance over which another arbitrator is seized. I recognize the Union’s argument that the parties may not have intended that every policy issue arising from the application of the policy for all time will be within Arbitrator Picher’s retained jurisdiction, but there is arguably sufficient nexus between the policy issue the Union has referred to me and the issues addressed, or stayed, by Arbitrator Picher in SHP 530.
57. I conclude that the questions asked in this section of this award are best answered by Arbitrator Picher. They are questions of the extent to which he retained jurisdiction, hence they are subject to his interpretation of the scope of the jurisdiction he retained. He remained seized of the interpretation of SHP 530. In my respectful view, he should determine whether he retained jurisdiction to hear the issue described above.
58. I therefore defer the question of Arbitrator Picher remaining seized under SHP 530 of the issue in this grievance for decision by him.
DATED at TORONTO on April 25, 2012.
Christopher J. Albertyn
Arbitrator