SHP 719

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY COMPANY

(hereinafter the “Employer”)

AND

UNIFOR

(LOCAL 101R)

(hereinafter the “Union”)

LAVALLEE DISCIPLINE AND TERMINATION GRIEVANCES

ARBITRATOR: Tom Hodges

FOR THE EMPLOYER: Alicia Becker, Labour Relations Officer

Mark Thompson, Labour Relations Officer

FOR THE UNION: Brian Stevens, National Rail Director

Tom Murphy, President, Local 101R

HEARING: June 25, 2014

AWARD: July 25, 2014

AWARD

JURISDICTION

The parties agree that I have jurisdiction in this matter pursuant to Rule 29 of Collective Agreement No. 101.

BACKGROUND

The grievor, Mr. Jeff Lavallee, was hired by Canadian Pacific Railway (CPR) on November 14, 2011 as a Diesel Mechanic Trainee at the employer’s locomotive dispatch area in Moose Jaw, Saskatchewan. On June 10, 2012 at approximately 0430 hours, the grievor and his co-worker that day, fellow Diesel Mechanic Trainee Stuart Burns, were assigned to move locomotives 5973 and 6608 from the north dispatch pad to track number 10. Mr. Burns operated the consist facing westward from locomotive 5973, the lead unit, while the grievor performed ground person duties, and rode the point, or rear end of locomotive 6608 as the consist proceeded eastwardly in reverse. Mr. Lavallee then disembarked at switch location S8, some 200 feet in advance of the required stopping spot for the consist, in order to facilitate the movement into track 10. He then instructed Mr. Burns to continue eastward for another two locomotive lengths, enough to clear the S8 switch, which he then realigned accordingly.

After throwing the S8 switch, the grievor advised Mr. Burns to move forward into track 10, but the latter detected some form of impediment to his effort to do so. He suspected that a handbrake may have been inappropriately secured, and he left the cab to check same on locomotive 5973. Mr. Burns found no issue however and returned to his controls, once again attempting to move the locomotives in a westward direction. After experiencing the same sense of resistance, he stopped the movement, and both men walked back to discover that the rear locomotive 6608 had “run-through” switch location S1, derailing the trailing set of wheels and tearing up a portion of track.

Following the report of the incident, Supervisor Mike Martin and Production Manager Bruce Griswold attended the site. Following some brief discussions, all four returned to the yard office to complete the incident report. Mr. Griswold at this point contacted his General Manger, John Duncan, to apprise him of the situation, and the decision was made to remove the grievor from service and request a substance test from him. Mr. Griswold then drove the grievor to Regina, some 60 kilometres distant, to have breath, urine and oral swab tests performed at the We Care facility. The procedure was completed at roughly 0810, and Mr. Griswold then drove Mr. Lavallee home, advising him that he was being held out of service until further notice.

The grievor’s post incident oral swab test sample had returned a negative result for all substances. His urine test indicated non-negative for marijuana with at least 50 ng/ml at the initial screening level and positive, at least 15 ng/ml for the subsequent confirmative and more precise test. His urine test for all other substances tested, indicated negative. His breath test for blood alcohol content had also indicated negative.

The employer’s Alcohol and Drug Policy provides:

· All employees must report for work in a condition that enables them to safely and effectively perform their duties.

· All employees must report fit for work and remain fit for work as scheduled and be able to perform their duties free from the negative effects, including the after effects of alcohol, illicit or illegal drugs, other mood altering substances or medications, any of which can have the potential to adversely affect the way a person thinks feels or acts.

· It is prohibited to be in the control of a CP vehicle or moving equipment, (either on or off duty) while under the influence of alcohol and drugs, including the after-effects of such use.

· Employees must comply with these requirements when on call.

Two separate investigations were held into the June 10 run-through switch, on June 26 with Mr. Burns and on June 28 with Mr. Lavallee respectively, some 16 and 18 days after the incident. Immediately following the June 28 investigation, a further investigation was conducted with Mr. Lavallee regarding the results of the post incident substance tests, specifically the urine analysis which yielded a positive (at least 50 ng/ml at the initial screening level and at least 15 ng/ml for the subsequent confirmative and more precise test) reading for marijuana. He continued to be held out of service.

Another 15 days later, on July 13, 2012, a supplementary investigation was conducted into the post incident urine analysis result. During that investigation the grievor was asked to explain his positive urine test for marijuana at question 17. The grievor answered:

Before this situation, I had not given any thought to being in attendance while others are using drugs. In the recent past, I have attended parties and functions where the use of marijuana has been fairly heavy. Since receiving the “Positive Test”, whenever I find this occurring, I step outside so I am not subject to the second hand smoke or effects.

Yet another investigation was held on August 1, again with the urine analysis reading as subject matter. The grievor continued to be held out of service.

On July 23, 2012 the employer imposed discipline upon Mr. Lavallee in the form of 25 demerits:

For failing to lock and line switch S1 for the intended movement of a consist, a violation of STOC 4-5 and for your failure to Protect the Point, a 5-Alive violation, resulting in derailment of CP6608 and significant track damage at Moose Jaw, SK on June 10, 2012.

On August 14, 2012 the company issued further discipline advising the grievor of his discharge:

For conduct unbecoming an employee as evidenced by your providing false and/or misleading information to the Company during your formal investigation conducted on June 28, 2012, July 13, 2012 and August 1, 2012in connection with “The results of your post incident substance test, following the June 10, 2012 on track incident at Moose Jaw, SK where S1 switch was run through subsequently derailing CP6608” and for failing your post incident drug test, a violation of Policy OHS 4100 as a Safety Sensitive Employee”.

The union submitted five grievances on behalf of Mr. Lavallee, alleging initially that the employer had not established probable grounds to suspect that the grievor was in any way impaired during his June 10, 2012 tour of duty, a condition that might have justified in their mind the rather intrusive request for a substance test. Secondly, the company, from the union’s standpoint, unfairly and inappropriately held the grievor out of service from June 10 through August 14, 2012, pending its decision regarding measure of discipline. Thirdly, the assessment of 25 demerits for a run-through switch was excessive, unjust and unnecessary. Fourth, the union asserted that the employer did not conduct the four investigations involving Mr. Lavallee in a fair and impartial manner and finally, it was argued that the termination of the grievor’s employment was unjust under the circumstances.

Rule 28 of the collective agreement provides:

No employee shall be disciplined or discharged until he/she has had a fair and impartial investigation and his/her responsibility established. An employee may be held out of service pending investigation up to five working days, which can be extended by agreement with the Regional Union Representative. Employees shall not be held out of service unnecessarily.

EMPLOYER POSITION

The employer believed that all four investigations were fair, proper, impartial and necessary in order to adequately establish the grievor’s culpability in the matters at hand. They further asserted that it was more than justified, as per company policy, to request a substance test in the wake of a safety sensitive employee at fault incident. As the grievor was in a potentially dismissible situation following his allegedly dishonest responses to questions regarding his positive result from the urine analysis test, the company argued that it was absolutely justified in holding the grievor out of safety sensitive service pending final disciplinary decision. Mr. Lavallee’s run-through switch in conjunction with his effective abandonment of his position by his abject failure to protect the point deserved at least a 25 demerit assessment. Moreover, the employer maintained that the grievor’s excuse of passive inhalation of marijuana as the driver of a positive urine analysis reading was entirely incredulous and that as a result, he deliberately misled the investigation process, and outright lied regarding the reason for the positive result from his urine analysis test. The company also argued that the safety sensitive nature of the Diesel Mechanic Trainee position commands a high degree of vigilance when it comes to the risk borne by employees in it service who engage in the consumption of illicit drugs. Given his very short service and his actions most inconsistent with continued employment, primarily the obvious severance of the bond of trust, the company submitted that there were absolutely no grounds for reinstatement or other substitution of penalty. The employer requested that the arbitrator uphold all discipline issued and decline the grievances accordingly.

UNION POSITION

The union contended the employer improperly subjected the grievor to a substance test, requested that the company not similarly compel employees in the future, and demanded compensation for Mr. Lavallee given the indignity suffered from submitting to an unjustified test. The union further argued for full compensatory redress as a result of the grievor being inappropriately held out of service for over two months prior to dismissal. As well, the union urged that the arbitrator strike the 25 demerit assessment, for the run-through switch and failure to protect the point, from the grievor’s employee record and replace it with a caution. The union also asserted that, given the blatant unfairness and impartiality of all four attendant investigations, the written record of each should be quashed and all discipline rendered be declared ab initio as a result. Finally, the union alleged that the termination of the grievor was unjust, and that he should be reinstated to his position of Diesel Mechanic Trainee with full restitution for lost wages, benefits and seniority, and that he be paid $5,000 in compensatory damages.

DECISION

The incident giving rise to the disciple involved the movement of two locomotives from the north dispatch pad to track number 10 in the locomotive dispatch area in Moose Jaw, Saskatchewan. The grievor’s co-worker was operating the locomotives and the grievor was protecting the movement at the opposite end to ensure the route was properly lined. The grievor left his position on the point to line a switch and instructed his co-worker to move the locomotive another two hundred feet. His co-worker moved the locomotives notwithstanding that the point of the movement was not protected and he could not see where he was going due to the curvature of the track. Although the grievor’s co-worker had moved the locomotives without protection and without being able to see where he was going, only the grievor was selected for a drug and alcohol test following the incident. The grievor had been in the presence of his co-worker throughout the shift. He had been briefed by his supervisor Mike Martin directly shortly after beginning the shift. The grievor had also been in the presence of Production Manager, Ben Griswold from the time immediately after the incident, during his testing and while the grievor was being driven home after the testing procedure. At no time did any of the three or any other witness indicate that the grievor appeared impaired or was demonstrating any cognitive deficiencies which gave then any concern or indication that the grievor may have been under the influence of drugs or alcohol.

The grievor was initially assessed 25 demerits for his obvious failure to properly protect the point of a reverse movement, and his direct responsibility for the subsequent run through switch. As a relatively new employee who had only just completed STOC (Shop Track Operating Curriculum) training, his actions during his June 10, 2012 tour of duty can only be characterized as a clear rule violation, and the arbitrator can see no reason at all to consider the reduction of the quantum of discipline.

The grievor was terminated from his employment for two reasons. First, in the company’s opinion, he failed his post incident drug test, a violation of their Alcohol and Drug Policy. Secondly, the employer considered his offering that second hand smoke may have caused the positive urine analysis test for marijuana to be a false, misleading and dishonest attempt to deflect personal responsibility, one that inflicted permanent damage to the employer/employee relationship.

While there is considerable concern why the grievor was selected for drug and alcohol testing in the absence of any signs of impairment being noticed by his co-worker and two supervisor’s, the case before the arbitrator goes considerably beyond the questionable requirement for post incident substance testing. It goes more to the treatment of the grievor once the tests had been administered. Was it necessary to hold him out of service for such a prolonged period of time? Was the investigation process fair and impartial? Did he mislead and deceive the employer investigating officers, or was there some merit to his second hand smoke defence? Did he indeed “fail” his urine analysis test? And should he have been dismissed given all of the circumstances?

Rule 28.1 of the collective agreement reads as follows:

It is understood that in instances of extreme misconduct, an employee may be held out of service pending investigation, or indeed pending dismissal from service. However, the evidence presented in support of the instant case revealed no such circumstances. The incident took place on June 10, 2012. The company was in possession of the full test results by June 13, three days later. The grievor’s initial investigation took place only 15 days later, with the full process extending over the better part of two months.

In CROA 193, Arbitrator Weatherill found as follows:

It is clear that an employee who is subject to discipline may be held out of service so far as is necessary for the purposes of enquiry, and he may be required to attend an investigation in connection therewith. This is not to say that the employee may be held out of service indefinitely pending the company’s deliberations as to his penalty. The whole system of assessing demerit marks is predicated upon the employees continuing at work in most cases.

In the case at hand, at no time did the employer request an agreed extension of the time limit provisions of the collective agreement. The company decision to continuously hold the grievor out of service without an extension demonstrated a clear disregard for fail and reasonable administration of the collective agreement.

A fair and unbiased investigation into an incident or accident is a touchstone of employee relations in any business undertaking. The grievor provided his consent for all test results to be released to the employer as part of its fact-finding exercise. For reasons best known to them, management elected to not procure the full test result material which may have either supported the employer’s position, or created further doubt. For example, if the initial non-negative tabletop urine analysis reading of at least 50 ng/ml been buttressed by a second and more definitive laboratory test reading of 100 ng/ml, the employer case for employee dishonesty might have come across as more persuasive. Alternatively, if a laboratory urine analysis result of just15 ng/ml had been presented, the strength of the employer case may have declined considerably when coupled with the negative oral fluid test results. Instead, however, the matter is left within the realm of speculation given the rather glaring lack of specific medical results in this regard.

The principle that an employee is entitled to a fair and impartial hearing must always be fervidly protected, particularly when an individual’s employment, career and reputation is in the balance. Full due process is required when an employee’s security and future may depend directly on the outcome of the investigation and a paramount responsibility in such situations accretes to the employer to ensure that a high standard of procedural integrity is sustained. To ignore this precondition to the imposition of discipline would undermine a substantive employee right, in some extreme circumstances justifying the voiding of the disciplinary measure, ab initio, regardless of the merits of the employer’s case against the grievor.

The foundation of a justifiable termination from employment is a sound and unadulterated investigation process. If an employer decides to dismiss an employee, it must ensure that the fact-finding exercise that forms the basis of that decision is beyond reproach. While breach of trust is without a doubt among the most lamentable of industrial offences, an employer claim or assertion in that regard can only be firmly established within the infrastructure of a fair and impartial investigation. In this case before the arbitrator, the investigation process only commenced more than two weeks post incident and post receipt of substance test results. It concluded some two months post incident, with the employer never during that period requesting a time limit extension from the union in accordance with the provisions of the collective agreement. Most importantly, nobody involved in the investigation process was privy to the complete and specific substance test results.

The grievor tested positive for marijuana on the 5 Panel urine analysis test which deploys the threshold of 15 ng/ml as the cut-off between a positive and negative result. Equally, however, the grievor tested negative for marijuana on the saliva sample test. That is the extent of information that has been available, over a two year period, to employee, employer, union and arbitrator. Absent the full detailed results of both tests, which were available to all concerned courtesy of grievor consent, the parties, including this arbitrator, have had no way of knowing whether the positive result for marijuana from the urine analysis test was 15 ng/ml, 20, 50, 100or more. That vital information has simply never been made part of the investigation or arbitration process. While the employer had the consent of the grievor to do so it did not seek out the full urinalysis test results even though there had been a negative oral fluid test.

The grievor was cooperative throughout the investigation. He repeated that he had not smoked marijuana, was not under the influence and could not explain his non-negative urinalysis test result for marijuana other than offering the possibility of passive inhalation of second hand smoke at a social gathering on June 5, 2012. He claimed that he had been on a fishing trip with three other people and spent four or five hours in their presence, with these other individuals consuming five to ten joints during that period.

The employer noted that clinical studies have determined that such circumstances would be extremely unlikely to register THC readings at or above the drug concentration threshold of 15 ng/ml used by accredited analytical laboratories for a positive result. As stated by Arbitrator Picher in CROA 2965:

As can be determined from the Cone study, passive exposure to the smoke of sixteen marijuana cigarettes in a small enclosed area did, in some instances, result in positive drug tests. As Dr. Willette stresses, however, none of the subjects in the Cone study registered positive for cannabinoids two days after their last exposure to the passive marijuana smoke. In other words, all of the subjects showed cannabinoids below the first screening level of 50 ng/ml within 48 hours of their exposure to the sixteen cigarettes burned in a bathroom-sized sealed room.

In CROA 2965 the grievor was accused of violating a last chance agreement. The complete urine test results indicated a drug concentration of 24.6ng/ml reading on the GC/MS testwas provided. There was no conflicting oral fluid test. The arbitrator was provided with extensive expert analysis of the grievor’s explanation and test results. The arbitrator also found the grievor’s credibility to be suspect. The grievor in that case had an extensive previous record.

In contrast Mr. Lavallee was not on a last chance agreement and had no previous record indicating drug use. He had a negative oral swab test result from a test performed at approximately the same time as the positive urine test. He had not been observed by either the two supervisors or his co-worker as being under the influence of drugs or alcohol. He was not reported as demonstrating any cognitive deficiencies. His testimony was repeatedly consistent in that he was not under the influence of drugs or alcohol. Although the grievor is not an authority on drug testing, when an explanation of the positive urine test was demanded during the investigation he offered that it may have resulted from inadvertent inhalation during the social setting. His employment was terminated as the employer did not find the explanation credible and therefore irreparably undermined the trust relationship between employer and employee.

The employer had been provided consent to obtain all related test information from Driver Check by the grievor on June 28, 2012. That evidence revealed that the grievor’s urine test in the preliminary immunoassay test conducted in Regina and the Gas Chromatography with Mass Spectrometry (GC/MS) 5 Panel test conducted at the Gamma-Dynacare Laboratories in London Ontario had resulted positive for marijuana. The evidence also showed that the grievor’s 5 panel saliva test conducted at the Maxxam Analytics Laboratory in Mississauga resulted negative. The employer also contacted Dr. Snider-Adler directly on this matter. Dr. Snider-Adler had verified the Gamma-Dynacare Laboratory results of the grievor’s urine test. No evidence was provided to indicate that the doctor was aware of the negative saliva test, the grievor’s possible explanation or that the Doctor was asked for the specific ng per ml results of the 5 panel urine test. There is also no evidence that the Medical Review Officer (MRO) discussed the reasons for the positive urine test with the grievor as contemplated by Appendix 3 of the Occupational Health and Safety Procedure # 5100 in spite of the fact that Dr. Snider – Adler was contacted by CP Rail on July 4, 2012.

Mr. Lavallee was effectively dismissed for dishonesty when required to respond to the employer’s questions, and the company submitted the arbitrator’s ultimate findings from CROA4247 in support of its decision to terminate the employment relationship. In that case, the grievor was discharged as a result of a positive result from a urine analysis test that had been mandated post incident. Arbitrator Schmidt ruled that:

I can come to no other conclusion that Mr. McMillan was dishonest with the Company in his statement on May 22, 2013, and that [he] continued to maintain that dishonesty, when he could have “come clean” in the face of overwhelming evidence of a positive test for amphetamines. He has been dishonest with the Company and during the course of this proceeding.

In all of the circumstances, Mr. McMillan’s conduct, properly characterized as dishonest, meant to conceal and deceive the Company, is incompatible with the safety critical position Mr. McMillan held. By his actions Mr. McMillan has destroyed the bond of trust essential between himself and his employer.

The employer assertion in this regard however was not completely on point. In dismissing the grievance in CROA 4247, it is instructive to note that the arbitrator’s reference to the grievor’s failure to confess to his addiction when confronted with overwhelming evidence. The grievor’s urine analysis test result in that case indicated the presence of amphetamines at over 53 times the clinically established threshold for a positive reading, a circumstance to which he wilfully and continuously refused to offer any insight or explanation. He was also less than truthful regarding a series of relapse episodes on his part that had occurred in recent years

In the case at hand the employer claims that the evidence before the arbitrator is the evidence upon which the employer has chosen to terminate the employee. Unlike CROA 2965 and 4247, in this case there are conflicting test results between the oral and urine test results. The ng per ml concentrations of marijuana found in the urine test were part of the evidence considered by the employer in determining the appropriate discipline to be assessed and by the arbitrator in the hearing. There was clear cause for testing in CROA 2965 and 4247. The arbitrator was provided with expert analysis upon which to evaluate the employer’s action. In the instant case the grievor provided consent for access to the necessary information and was consistent in his position that he was not under the influence of Drugs or Alcohol while on duty or subject to duty. The employer elected to not include the negative result for marijuana discerned from the oral cheek swab in its questions to Driver Check. The grievor was not provided the opportunity to review the possible reasons for the test results with the MRO. This coupled with a non-specific positive urine analysis test for marijuana can only be construed as mitigating in favour of the grievor.

The evidence considered by the employer and provided in the hearing to support the decision of termination is far from sufficient. All of the evidence available to the employer was either not requested or not considered. The evidence demonstrated that the employer clearly knew or ought to have known that it did not have the evidence necessary to terminate the grievor. The two month period of the investigation was unnecessary, unjustifiable, and a violation of the collective agreement. The grievor was not provided with a fair and impartial investigation.

In consideration of all of the foregoing the grievance must be allowed and the grievor will be returned to service as soon as is practicable without loss of seniority, but with a substantial discipline record flowing from his responsibility in the derailment. He will be compensated for lost wages and benefits. The union’s request for compensatory damages is declined.

I remain seized should there be any dispute with respect to any aspect of the interpretation, enforcement or implementation of this award.

Dated this 25^th, day of July, 2014

Tom Hodges

Arbitrator