IN THE MATTER OF AN ARBITRATION

AWARD OF THE ARBITRATOR

The Union grieves the discharge of Engine Attendant Eugene Wolanicki of Winnipeg as a result of a positive drug test. The nature of the dispute and issues is reflected in the joint statement of fact and issue filed with the Arbitrator, which reads as follows:

STATEMENT OF FACT:

On July 17, 1997, Engine Attendant Eugene Wolanicki was dismissed for: “failure to comply to the terms of your reinstatement, as evidenced by your having tested positive to cannabinoids in a random drug/alcohol screening mandated by the arbitrator as a term of your reinstatement into Company service at Winnipeg, Manitoba, June 16, 1997.”

STATEMENT OF ISSUE:

It is the contention of the Union that: Engine Attendant Eugene Wolanicki was treated in an arbitrary manner in regard to his dismissal.”

Therefore, with regard to the foregoing, it is the position of the Union that Engine Attendant Wolanicki should be returned to duty forthwith without loss of seniority, with redress for one year’s lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any monies owing.

The Company denies the Union’s contentions and claim.

There is no dispute at to the facts. The grievor has some twelve years of broken service with the Company. At the time of his discharge his duties as an engine attendant involved the movement of locomotives in and around shop facilities. In 1992 Mr. Wolanicki was found to have consumed liquor before reporting for work for a midnight shift. He did not deny having consumed liquor in the three hour period prior to the commencement of his tour of duty. As a result, the Company discharged Mr. Wolanicki effective May 12, 1992.

Mr. Wolanicki’s grievance against discharge proceeded to arbitration in Winnipeg before Arbitrator P. Colleen Suche on July 23, 1996. In an award dated August 20, 1996 Arbitrator Suche directed the reinstatement of Mr. Wolanicki into employment subject to certain conditions. Among those conditions was that the grievor undergo an assessment by a recognized addiction treatment centre and comply with any recommendations made by the centre. He was also directed to abstain from consuming alcohol and required to continue to attend meetings of Alcoholics Anonymous for a period of not less than two years, as verified by a named sponsor. Arbitrator Suche also directed that the grievor “will be subject to random drug/alcohol testing by the employer following reinstatement”. The final condition stated by Arbitrator Suche is as follows:

Should the grievor fail to observe any of the above conditions, he will be liable to dismissal.

On October 15, 1996, the parties executed an agreement which essentially became a last chance continuing employment contract for Mr. Wolanicki, incorporating the terms of the award of Arbitrator Suche. Among those terms is that the grievor was to abstain from consuming alcohol and was to be subject to random drug and alcohol testing for a two year period following his reinstatement.

On June 16, 1997, a random drug and alcohol test returned a positive result for the grievor, indicating the presence of cannabinoids as a result of the consumption of marijuana. During the ensuing disciplinary investigation the grievor maintained that the marijuana in his system must have been as a result of inhaling second hand smoke. He related that he and some friends spent some three days in a Winnebago camper at Winnipeg Beach during which time his friends consumed a substantial amount of marijuana. Denying that he consumed any, he asserted that the positive drug test would have been a result of his exposure to second hand smoke. On July 17, 1997 the grievor was terminated for “… failure to comply with the terms of your reinstatement, as evidenced by your having tested positive for cannabinoids in a random drug/alcohol screening mandated by the arbitrator as a term of your reinstatement into Company service …”.

Following the filing of the grievance the parties were disagreed as to the scope of Arbitrator Suche’s conditions as they applied to Mr. Wolanicki. On that basis they sought clarification from her as to the intent of her decision. The Union stressed that the conditions first established did not prohibit the grievor from consuming drugs, and that a positive drug test, in itself, could not therefore be characterized as a violation of his ongoing contract of employment made on October 15, 1996. In a supplementary award Arbitrator Suche advised the parties as follows:

Despite some very persuasive arguments from both parties as to what I must have meant and why, all I can do is indicate what I intended when I included the phrases in question in the award. What I meant was the Company could conduct random testing for drugs and alcohol. While it is true that the situation involved alcohol only, my thinking, (and now I confess I feel compelled to give some rationale to the parties) was that I was trying to put as many safeguards in place as I reasonably could, because of the particular incident – the facts themselves, the lack of reliable prognosis, and the Grievor’s own view of his situation – there were many unanswered questions about what was the underlying cause of the Grievor’s unacceptable conduct. Thus, returning him to his position even under conditions, still posed some risk to the Company given the safety sensitive nature of its business. The ability to detect drugs as well as alcohol was, in my view, a reasonable safeguard in all circumstances.

The Union’s representative submits to the Arbitrator that the grievor was not under a clear and direct obligation to refrain from the consumption of drugs, particularly in a non-work related environment. He submits that even if he did consume marijuana, which the Union denies, that would not constitute a violation of the conditions imposed by Arbitrator Suche and incorporated into the agreed contract of ongoing employment. The Union maintains that in all of the circumstances the discharge of the grievor was excessive.

The Company’s representative stresses that the requirement that the grievor undertake periodic, random, unannounced drug tests, as well as alcohol testing, must be taken implicitly as an understanding that he was to refrain from the consumption of any drugs. He submits that this is a situation where an employee has essentially violated a last chance agreement, and that for all of the policy reasons relating to the importance of last chance agreements, the grievance should be dismissed. In support of that approach the Company relies on a number of prior awards, including CROA 2743, 2753, 2996 and 3198. While the Company does not characterize the agreement of October 15, 1996 as a last chance agreement such as was considered in those cases, it argues that the conditions imposed by Arbitrator Suche are essentially of the same force and effect. In the circumstances, the Company submits that the Arbitrator should reject the suggestion that the grievor did not consume marijuana and was merely the victim of second hand smoke, and that he therefore violated the conditions established by Arbitrator Suche and rendered himself subject to discharge.

The issues presented in the case at hand are twofold: firstly, did the grievor in fact consume marijuana and, if he did, did he do so in contravention of the conditions of his reinstatement following the award of Arbitrator Suche? If the answer to both of those questions is yes, the Arbitrator would have little basis to interfere with the result, for all of the policy reasons elaborated in the cases cited above. Arbitral conditions of continuing employment and last chance agreements are an important instrument in the field of discipline in industrial relations, allowing both parties to protect their interests with a degree of certainty, in the knowledge that should the conditions be violated there will not be extensive disagreement or arbitration in the event of a negative outcome. Obviously, from the standpoint of unions and employees, the last chance agreement is an opportune instrument to avoid what might be a negative outcome at arbitration and to give an employee a further chance to demonstrate his or her ability to continue in productive service without further negative incident.

Because of the nature of arbitral conditions and last chance agreements, it is obviously very important to look carefully at the terms imposed upon an employee. As the record discloses, at the time of his discharge in 1992 there was no apparent record of involvement by the grievor with the consumption of marijuana. His offence was alcohol related, a fact that was not in substantial dispute at the time. Not surprisingly, therefore, the award of Arbitrator Suche, insofar as any prohibitions are concerned, confined itself to the treatment of the grievor as a recovering alcoholic. That is reflected in the directive that he undergo assessment and participate in the activities of Alcoholics Anonymous. It is also plainly reflected in the only clear prohibition which she articulated in her award, namely that he abstain from consuming alcohol. While, as she indicates in her supplementary award, she felt that the Company should have the further “protection” of random drug and alcohol testing, she did not in her award specifically state that the grievor would be subject to discharge should he consume drugs. Rather, as is plain from her supplementary award, she simply felt it useful to give the Company the broader protection of being able to randomly drug and alcohol test Mr. Wolanicki.

How, then, can it be said that Mr. Wolanicki violated the conditions established by Arbitrator Suche and incorporated into the parties’ own agreement of October 15, 1996? I do not see how it can be concluded that there was any violation of the terms imposed upon the grievor. It is arguable that if the grievor had failed to attend at a scheduled random drug test he would have violated the conditions of the arbitrator’s order. That, however, is not at issue here. Most importantly, the arbitrator’s decision simply does not state that a positive drug test would, of itself, render the grievor liable to dismissal.

It is important to appreciate that arbitrators have recognized that the use of marijuana in a non-work related setting is not, of itself, a basis for automatic discharge of an employee, even in a safety sensitive industry. Even within the railway industry it has been found that the casual use of marijuana by an employee on a day off does not, of itself, offend any legitimate employer interest so as to justify automatic discharge. (See, e.g., CROA 2209.)

Boards of arbitration should not lightly infer or imply the terms of a last chance employment agreement, or of the order of an arbitrator, the consequences of which would be automatic discharge. If an employee is to be terminated by reason of violating the conditions of an ongoing contract of employment or an arbitrator’s award, those conditions must be stated in clear and unequivocal language. It is not uncommon, for example, for arbitrators’ awards to expressly prohibit the consumption of both alcohol and drugs by an employee, depending upon the circumstances of the case. Where, however, as here, the arbitrator’s award did not specifically prohibit the consumption of drugs, but merely gave to the Company the additional oversight of random drug testing, it is not fair or appropriate for another board of arbitration to read into the terms of the prior award an absolute prohibition against the consumption of drugs, the consequence of which would be rendering the individual liable to discharge.

In the case at hand I am compelled to conclude that the grievor did not violate the terms of the reinstatement order of Arbitrator Suche and did not violate the terms of the ongoing contract of employment dated October 15, 1996. Neither of those documents contains any express prohibition against the consumption of drugs in a non-work related setting. Even if it could be inferred that the drug testing provision would implicitly prohibit the consumption of drugs, or being under the influence of drugs, while at work or subject to duty, there is no evidence in the case before me to suggest, much less establish, that the grievor consumed marijuana while on duty, while subject to duty or prior to going on duty. Even accepting that he may have consumed marijuana on the last day of the beach outing with his friends, his first tour of duty was not for a significant period of time following that event.

Notwithstanding the foregoing, however, the Arbitrator cannot accept the grievor’s explanation for the positive drug test which he did return. As noted by the Company, his positive reading was seven times the permissible cut-off point for THC in his bloodstream. The Arbitrator accepts, without reservation, the evidence of the Company’s Chief Medical Officer, Dr. John W. Cutbill, to the effect that the circumstances described by the grievor, in light of the generally accepted scientific authorities, would not indicate that the grievor attained that level of positive result by the ingestion of second hand smoke. In CROA 2965 this Arbitrator extensively reviewed the medical and scientific authorities on second hand smoke consumption. It is not necessary to repeat here the content of the authorities reviewed. Suffice it to say that the circumstances described by the grievor fall well short of establishing the likelihood that he registered a positive test for cannabinoids by reason of the ingestion of second hand smoke. That aspect of his evidence is therefore not accepted.

In the result, the Arbitrator is left with the conclusion that the grievor, who was subject to a condition of drug testing, did consume marijuana, albeit in a non-work related setting. At a minimum he then knew, or reasonably should have known, that to test positive would have placed him in a position of substantial jeopardy and would have left significant uncertainty in the mind of the Company as to whether he had or had not violated the terms of his ongoing contract of employment. In these circumstances, while I am satisfied that Mr. Wolanicki did not violate the conditions of his ongoing employment contract, he nevertheless rendered himself liable to a severe degree of discipline. This is therefore not a case for an order of any compensation.

For the foregoing reasons, the grievance is allowed in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation and without loss of seniority. His return to work shall be conditioned upon his being medically assessed, including any appropriate drug and alcohol testing. He shall, further, be subject to the same conditions as stated in the original award of Arbitrator Suche for a period of not less than two years following his reinstatement, with the additional prohibition that he is not to consume drugs, as well as alcohol. Failure of any of the conditions so established shall render him liable to dismissal, with access to arbitration only on the issue of whether he did or did not violate the conditions.

The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Ottawa, this 29th day of November, 2006

Michel G. Picher

Arbitrator

SHP612