SHP 702

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

-and-

THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS’ UNION OF CANADA (CAW-CANADA), LOCAL 100

(the “Union”)

RE:  GRIEVANCE NUMBER CAW12-2011-00071

EMPLOYEE L.  - REASONABLE CAUSE TESTING

ARBITRATOR:                     MICHEL G.  PICHER

APPEARANCES FOR THE COMPANY:

R. Campbell                          – Manager Human Relations

R. Bateman                           – Director Labour Relations

R. Boeckler                           – Senior Superintendent Motive Power

T.  Degagne                          – Superintendent Motive Power

APPEARANCES FOR THE UNION:

B. Stevens                            – CAW National Representative

K.  Hiatt                                  – Local 100 President

T.  McKimm                           – Vice President Local 100, Prairie Region

A hearing in this matter was held in Montreal on January 21, 2013.

AWARD

            What constitutes reasonable cause to demand that an employee undergo drug and alcohol testing? That is the issue in this grievance. The following Dispute and Statement of Issue was filed at the hearing by the parties.

DISPUTE:

The violation of Rule 5, 33 and 43 of Agreement 12.  In addition the alleged violation of the Canada Human Rights Act.  SHP 530 Drug and Alcohol award and subsequent 2010 award by Arbitrator Picher regarding the same general topic, CN’s Policy to Prevent Alcohol and Drug problems and the International Covenant on Civil and Political Rights (Article 17) as a result asking Employee L to take a drug and alcohol test. 

COMPANY’S EX PARTE STATEMENT OF ISSUE:

The Union contended that:

Rule 5 is alleged to have been violated when the Company kept Employee L at work until 16:20 without paying him for time beyond his shift. 

Rule 33 is alleged to have been violated as Employee L was under doctor’s care and told to go home and rest yet the Company made him do an accident investigation and subjected him to alcohol and drug testing knowing he was on Tylenol three’s and muscle relaxants. 

Rule 43 is alleged to have been violated as a results of the Company using drug and alcohol testing to harass Employee L and send a message to others not to report injuries and thusly suppressing compensation claims and that the process followed by the Company after his injury was a further example of intimidation and harassment. 

SHP 520 and follow up award by Arbitrator Picher are alleged to have been violated as the Company did not have reasonable basis for demanding a drug and alcohol test of Employee L because he was not in a safety sensitive position. 

The Company is alleged to have violated its own procedures contained in the Alcohol and Drug Policy and did not have reasonable cause to test Employee L. 

· Only one supervisor signed the reasonable cause form. 

· The manager recorded the occurrence time on the reasonable cause form, 5 hours before the decision to test Employee L was made. 

· The behaviour observed by the manager, which led to the testing, was not consistent with the actual facts. 

The international Covenant on Civil and Political Rights was violated as a result of the Company drug testing Employee L.  He was subjected to an unwarranted intrusion of his privacy and an unjustifiable affront to his dignity.

The Company disagrees with the Union on these matters. 

(signed) B.  STEVENS (signed) R. CAMPBELL

NATIONAL REPRESENTATIVE    MANAGER, LABOUR  

RELATIONS

            The Union submits that Employee L was wrongfully required to undergo drug and alcohol testing.  It submits that the supervisor who directed Employee L to undergo testing did not have reasonable and probable grounds to do so.   It seeks a declaration to that affect as well as a number of other remedies, including an apology from the Company to the employee as well as punitive and exemplary damages. 

            The facts giving rise to the grievance are not in substantial dispute.  Employee L works as an Apprentice Heavy Duty Mechanic at the Transcona railway equipment shops in Winnipeg.  He said to have had approximately one year of service at the time of the events here under review. 

            On the morning of September 27, 2011 Employee L attended work, first completing a job briefing and then proceeding to his assignment to weld dowel holes on a locomotive unit.  Having accessed his workplace with his tool box, Employee L sat on a mechanic's stool.   He then bent over to prepare dowel holes he was to weld and immediately felt a sharp pain in his left back.  He then proceeded to the office of Supervisor Ken Stojak to advise of his condition, suggesting that it may been caused by his sleeping position on the night previous.  His supervisor then referred Employee L to Senior Superintendent Rudy Boeckler. According to the Company’s account, the employee related his condition to Mr. Boeckler, again suggesting that he may have slept awkwardly.  It appears that he also commented that he felt some chest pains.  In the face of these facts Mr. Boeckler directed that a first aid employee be brought and that the first aid staff should accompany Employee L to the hospital.  The record also confirms that as the employee was awaiting his taxi to go to the hospital Superintendent Tom Degagne stopped by to have a few words with him. 

            During the time the employee was away to be seen at the hospital there was an exchange of comments between Mr. Boeckler and Mr. Degagne.  It appears that both supervisors agreed that Employee’s L appearance and behaviour were out of the norm.  According to their recollection, his eyes were red and he seemed inattentive and sluggish. 

            After the employee's return from the hospital he was directed to meet with Mr. Boeckler and Mr. Degagne in the Motive Power Boardroom.  After he reviewed the events with them, he was directed to see Supervisor Ewen Woods to fill out an injury form.  It appears that at or about that time the Union’s Health and Safety Co-chair and the Area Health and Safety Representative conducted a re-enactment of the incident.  Meanwhile, based on his observations, Mr. Boeckler completed at “Reasonable Cause Form”.  That document records his observations and his reasons for deciding to refer Employee L for drug and alcohol testing.  As a result, before he left the premises Employee L was paged to the supervisor's office and was directed by Mr. Boeckler to undergo the drug and alcohol testing.

            Shortly thereafter, a CN police constable attended and administered a breathalyzer test on which the employee tested absolutely negative.  A supervisor then escorted Employee L to a drug sample collection point where he provided a urine sample.  That sample also was returned as negative.  He then re-attended at the workplace and was allowed to go home at or about 16:20.  The following day he returned and did a full day’s work.  A disciplinary investigation with respect to the injury incident ensued, as a result of which no action was taken against the grievor.

            Some two months following these events the Union filed a grievance.  While a number of rules were invoked, for the purposes of this arbitration it is agreed that the sole issue is whether, as the Union maintains, Superintendent Boeckler did or did not have reasonable and probable cause to require Employee L to undergo drug and alcohol testing. 

            The Union’s representative submits that there was in fact no basis to suspect that the employee was under the influence of drugs or alcohol on the morning in question.  He stresses that a substantial number of other individuals encountered Employee L at the commencement of his day and during the course of the events described above.  The Union’s representative stresses that none of those individuals observed anything untoward in the appearance of L, his actions or his mannerisms.  The Union files in evidence several letters from employees who observed Employee L, all of which state that he appeared to be normal. 

            In support of its case, the Company has filed before the Arbitrator the Reasonable Cause/ Post Incident Report Form which was filled out by Superintendent Boeckler.  On that form the Superintendent noted that Employee L’s speech was “silent”, that his eyes were bloodshot, that his skin was flushed and that he appeared both inattentive and sleepy.  As noted above, the observations made by Mr. Boeckler were shared with and corroborated by Motive Power Superintendent Degagne. 

            The Arbitrator can readily understand the Union’s concerns.  There is clearly no indication in the evidence that there was any smell either of alcohol or marijuana on Employee L or his clothing.  Nor is there any indication that he seemed unsteady or that his speech was slurred or irregular.  From the Union’s standpoint, Employee L would have been to all outward appearances normal or close to normal, and there was simply no basis to request that he undergo drug and alcohol testing. 

            There is relatively little jurisprudence with respect to what constitutes reasonable and probable cause to direct an employee to undergo drug and alcohol testing.  The Union does refer the Arbitrator to one reported case: Re:  Weyerhaeuser Company Ltd. v C.E.P. 447, (2006), 154 L.A.C. (4^th) 3 (Sims). In that award the arbitrator found that in fact supervisors did not have reasonable grounds to direct drug and alcohol testing of two employees.  The arbitrator concluded that the employees were entitled to damages for “personal indignities and mental suffering”.  In that case Arbitrator Sims came to the conclusion that there was no real exercise of judgement by supervisors in their decision to require the employees to be tested.  As he put it:

My conclusion in relation to each investigation is that the desire to test was foremost in the decision-makers’ mind; that rather than doing as full an investigation as time allowed in the circumstance.  They believed they could test if they could complete the checklist and did not look beyond that and make reasoned judgement based on all the available information.  I can only conclude that they felt the introduction of testing would work as a deterrent in the workplace and they were anxious to see that happen.  Certainly the comments made to the Union suggest such an attitude prevailed.

The fundamental issue to be determined in this award is whether there were sufficient grounds for Mr. Boeckler to form a reasonable concern as to whether Employee L might be under the influence of drugs or alcohol.  In approaching that issue I consider it extremely important to recognize that there does not appear to be any conflict as to the facts related by Mr. Boeckler, particularly those facts concerning Employee L's appearance.  It is not denied that he had bloodshot eyes and that his skin appeared flushed.  Nor is there any evidence before me to question the fact that Mr. Boeckler did consult with Mr. Degagne and that the two of them shared their own perception of Employee L’s appearance as they saw it prior to the time he was sent to the hospital to have his back tended to. 

            I consider it important to recognize that the determination of whether there is or is not reasonable cause to require an employee to undergo a drug test is one that will inevitably involve a degree of subjectivity and that each case must turn on its own particular facts.  Reasonable persons may or may not agree on what conclusions should or might be drawn from an individual’s outward appearance or other surrounding facts.  However, in a highly safety sensitive work place, some degree of deference must be given to supervisors who exercise that judgment.  It is obviously not necessary that they be proved correct as to their concern.  In my view it is sufficient that they or a delegate have sufficiently observed the individual employee, have directed their mind to the person's physical appearance, including such factors as their speech or gate, have weighed any other relevant information at their disposal and ultimately have exercised their judgement in good faith.  Other relevant information could, for example, include the presence of a drug or drug paraphernalia. Moreover, in keeping with the Company’s policy, wherever practicable, a supervisor who contemplates directing an employee to undergo drug and alcohol testing based on his or her observations should seek the benefit of a second opinion from another supervisor or other person in a position to observe the employee in question. 

            I am satisfied that these general guidelines were well applied and followed by Superintendent Boeckler in his dealings with Employee L on September 27, 2011.  Bloodshot eyes and flushed skin, in particular, are relatively common indicators of the effects of alcohol or marijuana.  While they can obviously be caused by other factors, the presence of those indicators, coupled with what Mr. Boeckler judged to be a degree of inattentiveness on the part of Employee L, were sufficient grounds for concern.  It is also significant, in my view, that in making his decision Superintendent Boeckler did discuss Employee L’s condition with Motive Power Superintendent Degagne, who also observed Employee L first hand. 

            It should be stressed that the fact that Employee L passed his drug and alcohol test does not, of itself, confirm that there was no reasonable and probable cause to ask him to undertake drug and alcohol testing.  It is obvious that reference must first be had to the outward objective evidence of the employee’s condition and appearance at such time as he is asked to undertake drug and alcohol testing.  In the instant case, I am satisfied that Mr. Boeckler's observations, confirmed by Superintendent Degagne, were made in good faith, were reasonably accurate and were such as to raise a reasonable question as to whether Employee L was to some degree impaired by alcohol or drugs.  I am satisfied that superintendent Boeckler turned his mind to the external evidence which he felt justified drug and alcohol testing and that he did so conscientiously and in good faith, based on his personal observations

            For all of the foregoing reasons, I am satisfied that the request that Employee L undertake a drug and alcohol test was made on reasonable and probable grounds and in good faith.  In the result, I can see no violation of the collective agreement, of any human rights legislation or of the Company’s own drug and alcohol policy.  For these reasons the grievance must be dismissed. 

Dated at Ottawa this 28th day of January, 2013

______________________________

Michel G.  Picher

                                                                                                       Arbitrator