IN THE MATTER OF AN ARBITRATION INTERIM ORDER

PRELIMINARY AWARD

This arbitration concerns a policy grievance, dated January 18, 2008, filed by the Union pursuant to rule 27.13 of the collective agreement. Essentially the Union objects to what it maintains is the improper drug testing of employees who do not have safety sensitive duties and responsibilities. The grievance letter reads as follows:

Dear Sir,

This is a policy grievance filed pursuant to Rule 27.13 of Agreement 12.

In a letter to Mr. Bryon De Baets dated December 18, 2007, Mr. Doug Fisher states the Company’s view to the effect that all members of the bargaining unit are subject to discipline for refusal to submit to drug or alcohol testing in situations of “reasonable cause or post-accident”. Mr. Fisher cites both the 2004 re-write of the CN Drug & Alcohol Policy, as well as the April 29, 2002 agreement between the parties (attached), in support of his interpretation.

The Union contends, to the contrary, that only employees occupying risk-sensitive positions are subject to discipline for such refusals. Any discipline assessed by the Company in such circumstances to non-risk-sensitive employees would constitute a violation of the award in SHP 530 as completed by the parties’ agreement of April 29, 2002.

NOTE: “Risk-sensitive” is the term used by Arbitrator Picher in SHP 530, and it is equivalent to the term “safety-sensitive” as used in the CN Policy and the April 29, 2002 agreement.

The Union requests, via this grievance, that the Company reconsider its view and issue any necessary clarifications to its responsible managers

along the lines of the Union interpretation as set out above.

Unfortunately, Agreement 12 does not appear to provide for the filing of a policy grievance of this nature at the final step of the grievance procedure. We are copying Mr. Fisher and requesting that the Company agree to deem this as a Step 2 grievance and reply to it accordingly.

Please feel free to contact Mr. De Baets at any time to discuss this matter further.

Respectfully submitted,

Bruce Snow

Local Chairperson, CAW Lodge 280 Local 100

Thornton Yard Vancouver B.C.

The Company maintains that the Union is both time barred and estopped from raising the grievance at this time. The positions of the Company are, to some degree, expressed in a letter dated February 29, 2008 and delivered to the Union’s Vice-President, Mr. J. Burns over the signature of Manager, Labour Relations Ms. Patricia Payne. That letter reads, in part, as follows:

First, the Company maintains the position that we must decline your grievance, as it is untimely. As indicated in our Step 1 response, the Union has been in possession of the revised policy to Prevent Workplace Alcohol and Drug Problems for almost five years. Had the Union had any difficulty with the Company Policy, it was incumbent upon the Union to raise those concerns at the earliest opportunity, but clearly no later than 35 days after you received said Policy. The Union has raised no previous objections to the Company’s position on post-incident testing and has provided no explanation as to why it has not grieved this matter previously. Therefore it is untimely and there is no reason to waive the mandatory time limits of the collective agreement in this case. The Company’s applications of testing post-accident and post-incident have been consistent. The Company has made no representations to the Union that the Company would not test employees post-incident or post-accident; in fact the letter between Mr. Fisher and Mr. Moore-Gough make it clear that the Company would definitely be testing employees post-accident or post-incident, regardless as to whether they were safety-sensitive or not. In fact the Union agreed with that position and that understanding is captured in the letter dated April 29, 2002.

…

The Union has a right to contest discipline assessed against any of its members. However, we believe the Union agreed to the premise that the Company could and would be testing your members post-accident or post-incident under peril of discipline for refusal. Had the Union sought to limit post-accident or post-incident testing to only safety-sensitive employees, Mr. Moore-Gough, and (sic) able and very experienced writer of collective agreement language, when he was drafting the letter with Mr. Fisher, would have chosen clear and unequivocal language to accomplish that purpose. The language chosen does not specifically refer or limit the Company from post-accident/incident testing to safety-sensitive individuals; therefore it must be construed as applying to all employees, post-accident/incident. It would be absurd to believe that the Company and the Union would have no interest in determining possible causes or contributing factors of accidents or incidents that involve only those employees designated as safety sensitive.

The chronology of events and the facts pertinent to this grievance are not in substantial dispute. On January 28, 1997 the Company issued a Workplace Drug and Alcohol Policy. That policy became the subject of a policy grievance by the Union which resulted in SHP 530, a decision dated July 18, 2000, reported as Re: Canadian National Railway Co. and C.A.W.-Canada, (2001) 95, 95 L.A.C. [4^th] 341 (M.G. Picher). That decision provided, in part:

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 interest, 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.

Following the award in SHP 530 the parties commenced negotiations with a view to identifying risk sensitive employees, who came to be referred to as safety-sensitive employees. Their negotiations resulted in the signing of an agreement dated April 29, 2002. That letter reads, in part, as follows:

As a result of our numerous discussion over many months and in light of Mr. Picher’s decision, the parties have agreed to the following classifications under the jurisdiction of the CAW (Shopcraft bargaining unit, Collective Agreement 12) shall hereafter be regarded as safety-sensitive positions under the terms of the Policy.

1) All secondary assignments bulletined under Rule 6.21, including spares, but excluding groundspersons.

2) All Crane Operator positions, where cranes of 60-ton capacity or greater are in use.

3) Any existing or future assignments where as part of the employees’ regularly assigned duties, the employee is or will be required on a regular and/or routine basis, to operate on track equipment of any type (including but not limited to locomotives, tow motors, hi-rail vehicles, etc.) outside of yard limits.

As indicated, the present incumbents of the aforementioned positions/classifications will not be subjected to screening procedures if they move from one safety-sensitive job to another. Future job bulletins will indicate that these jobs are safety sensitive and that applicants must undergo drug and alcohol screening, as a precondition, in order to be considered qualified and permitted to be awarded the position, if otherwise qualified for the job in question.

…

The Union shall advise Arbitrator Picher that all matters outstanding related to its policy grievance and the award known as SHP530 (issued July 8, 2000) have been resolved. The Union also will abandon any judicial review or any other legal proceedings and agree not to institute any new proceedings concerning the legitimacy of the Policy or of Arbitrator Picher’s award, either in the civil courts or before the Canadian Human Rights Commission or its Tribunal, or under the terms of the Collective Agreements.

Obviously, this settlement is without prejudice to the Union’s right to appeal the quantum of discipline assessed to any of its members on a “case by case” basis. Furthermore, the Union acknowledges that the Company has the right, under the terms of the Policy, to impose drug and/or alcohol tests where reasonable cause exists or post accident, as the case may be.

The modification to the Policy, as it applies to employees represented by the CAW, will take effect on May 1, 2002.

(emphasis added)

The Company’s fundamental position is that the statement that the Union acknowledges the Company’s right to impose drug and alcohol tests in reasonable cause and post accident circumstances, as emphasised in the above quotation, is a recognition by the Union that all employees, regardless of whether their duties are safety sensitive, are subject to that rule. The Union strenuously denies that it ever agreed to any such expansion of the scope of employees who may be subject to reasonable cause and post accident/incident drug and alcohol testing.

There appears to have been no substantial controversy, however, between the parties with respect to the application of the policy in the period between 2002 and 2004, when the Company issued a revision of its “Policy to Prevent Workplace Alcohol and Drug Problems”. At page 6 the revised Policy contains the statement under the heading “Scope”:

This policy applies to all employees of CN and its subsidiaries who are based in Canada. Those employees in safety sensitive positions are held to a higher standard and are subject to more serious consequences because of the direct impact that these positions have on safety.

Page 13 of the Policy defines “Employee” as follows:

Refers to the company’s regular, part-time, and seasonal employees on the CN payroll, including students and temporary employees.

Finally, the 2004 Policy contains, at page 22, a chart on alcohol and drug testing which reads as follows:

Alcohol and drug testing will be conducted in the following circumstances:

Safety Other

Sensitive

Pre-employment Yes No

Pre-assignment to

safety sensitive No Yes

As part of a fitness for

duty assessment Yes No

Reasonable cause Yes Yes

Post accident Yes Yes

Relapse prevention Yes No

Agreement Under and

employment Contract Yes Yes

(emphasis added)

The issue which is presently before this Arbitrator appears to have been substantially prompted by the arbitration award of Arbitrator Christopher Albertyn, an award between these parties dated October 16, 2007. That arbitration concerned the termination of employee Gord Heywood. Although Mr. Heywood was responsible for driving a company truck which collided with a freight car, he was, by the parties’ agreement, not listed as a safety sensitive employee. Mr. Heywood refused to undergo a post accident drug test and was assessed demerits and other discipline on a number of grounds, including “discharge for violating the Company Policy to Prevent Workplace Alcohol and Drug Problems by refusing to provide a sample for a post-accident drug test.”

It is common ground that in the brief submitted to Arbitrator Albertyn the Union’s representative did not raise the objection that Mr. Heywood could not be drug tested post accident because he did not occupy a safety-sensitive position. The fundamental position taken by the Union in that case appears to have been that the taking of an urinalysis test was simply not necessary in all of the circumstances.

At paragraph 31 of his award Arbitrator Albertyn found that management acted reasonably by requiring post accident testing and concluded that the Company was entitled to require Mr. Heywood to undergo both an alcohol and drug test in the post accident situation.

That award set off alarm bells within the Union. On December 5, 2007 the Union’s President, Mr. Bryon De Baets wrote to the Company’s Director of Labour Relations, Mr. Douglas S. Fisher. That letter reads, in part, as follows:

Without speculating as to the reason for this finding by Arbitrator Albertyn, the result is disturbing to the Union – not only because it runs counter to SHP 530 and the agreement between the parties, but because it is absolutely essential that our representatives in the field (both management and union) are properly informed and are able to properly advise employees of their rights and obligations in such situations.

Accordingly, the Union requests that we enter into a mutual agreement to amend the Heywood award in order to conform to our case law and agreements. The simplest way to do so would be as follows:

1. Delete the sentence referring to testing in paragraph 2.

2. Delete paragraphs 20 to 34 in their entirety.

3. Delete the sentence in paragraph 35 referring to urinalysis.

We would then jointly write to the Arbitrator respectfully requesting that he amend his award accordingly.

By letter dated December 18, 2007 Mr. Fisher responded that in the Company’s view there was no error in the Arbitrator’s decision. The Company’s position, as expressed by Mr. Fisher, is reflected in the following passage:

We do not agree with your statement that “Taken together, that award [SHP 530] and the April 29, 2002 (sic) provide that employees occupying non-risk sensitive positions are not subject to discipline, under any circumstances, for the sole reason of declining a drug or alcohol test.”. We have never conceded such a point and do not understand how your union may have formed such an opinion. We believe Mr. Picher’s decisions and Mr. Albertyn’s provide no such broad-based guidance, rather we read them as supportive of the premise that an employee may, in fact, be disciplined, for such (sic) any such Policy violation.

So there is no confusion, the April 29, 2002 letter, composed and signed by me and countersigned by your Mr. Moore-Gough makes no reference at all to risk-sensitive or non risk-sensitive positions. It speaks of safety-sensitive positions and requirements for pre-employment and return to work testing requirements. You are directed to the penultimate paragraph, last sentence, on page one of the April 29, 2007 letter of settlement, which reads: “Furthermore, the Union acknowledges that the Company has the right, under the terms of the Policy, to impose drug and/or alcohol tests where reasonable cause exists or post accident, as the case may be.” In fact, it is our belief that the Union conceded the very point we believe you are now attempting to re-open, although Mr. Moore-Gough reserved the right to appeal the quantum of discipline assessed to any of its members on a case by case basis. But we respectfully submit that that reservation by Mr. Moore-Gough, necessarily entails the acceptance by the Union, that members of your bargaining unit would continue to be subjected to discipline for violations of the Policy, including refusals to submit to reasonable cause or post-accident testing.

The material before the Arbitrator further indicates that it appears that on a number of occasions the Company did alcohol and drug test members of the bargaining unit without any objection or grievance by the Union. It would seem that it was only after the Albertyn award that the Union took an aggressive position contrary to the position of the Company, and moved to protect its position by the filing of this policy grievance on January 18, 2008, shortly following Mr. Fisher’s response to Mr. De Baets.

At the risk of over-simplification, the fundamental position of the Company is that, apart from the merits of its interpretation of the agreement it maintains was made with the Union in 2002, as of the publication of the Company’s Policy in 2004 the Union knew, or reasonably should have known, that the Company reserved the right to drug test all employees in circumstances of reasonable cause or post accident/incident, regardless of whether they do or do not hold a safety sensitive position. The Company maintains that the Policy, delivered in 2004 to Union officers, is plain in that regard, particularly when reference is made to the chart contained within it which specifies reasonable cause and post accident/incident testing for “Other” employees beyond those who hold safety-sensitive positions. It also notes the fact that a reasonable number of employees were in fact tested by the Company over the years, without any objection or grievance, and that the position which the Union asserts in these proceedings was not in fact argued before Arbitrator Albertyn.

The Arbitrator has some difficulty with the overall position of the Company as regards timeliness and estoppel. Firstly, without commenting on the ultimate merits of the case, on its face the letter of agreement between the Company and the Union made on April 29, 2002 is arguably ambiguous with respect to the issue of alcohol and drug testing employees who do not hold safety sensitive positions. The differing interpretations of the Company and the Union as regards the content of the letter of agreement of April 29, 2002 are plausible and understandable. It is not clear to the Arbitrator that a reading of that document, without more, would clearly put the Union on notice as to the Company’s interpretation, and its view that it had the Union’s agreement to drug test all employees in reasonable cause and post accident/incident situations.

There is less uncertainty, obviously, on the face of the revised policy which the Company issued in 2004. That said, however, two considerations apply. Firstly, the unchallenged representation of the Union is that the Union’s officers did not read every page and line of the new policy when it was sent to them. The Arbitrator does not excuse or endorse that omission on their part. However, the material before me does not confirm that any responsible officer of the Union had actual knowledge of the Company’s view of the original agreement made in 2002. Secondly, even if it could be shown that the Union was aware of the Company’s interpretation, it is less than clear to the Arbitrator that the Union was necessarily under an obligation to grieve the unilateral statement 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.

What is to be made of the Albertyn award? In the Arbitrator’s view it is difficult to ground an estoppel on the manner in which the Union’s representative argued that case. By the Union’s own characterization, it would appear that he proceeded in error in not raising the fact that in the Union’s view Mr. Heywood did not occupy a safety sensitive position and could therefore not be drug tested under the policy, in accordance with the agreement between the Company and the Union made in 2002. On what basis, however, can that error in pleading be viewed as tantamount to an amendment of what the Union views as a fundamental right negotiated for the protection of its members in 2002, and never waived in any contractual document since? I find it difficult to conclude that the failure to raise an argument, whether it be by a Company representative or a Union representative, can of itself be converted into an estoppel which effectively alters the perceived fundamental rights of either party to a collective agreement. While a consistent sequence of such arbitration cases, in which the same position is taken, might eventually qualify as a representation that would ground an estoppel, I am satisfied that the “one off” pleading of a single grievance cannot be given that import.

What, then, does the material before the Arbitrator disclose? At best, the agreement of 2002 must be seen as a document which is either patently or latently ambiguous. The Arbitrator makes that finding in the recognition that it does allow for the adducing of extrinsic evidence for the purposes of dealing with the ultimate merits of this grievance. As regards the issue of timeliness and estoppel, however, I cannot find that the Union was on clear notice from 2002 with respect to the Company’s understanding of its asserted right to be able to drug test non safety sensitive employees in circumstances of reasonable cause or post accident/incident. Nor, for the reasons discussed above, can I find that the publication of the revised policy in 2004 itself placed the Union under an obligation to grieve the Company’s interpretation. It appears clear that the Union’s attention to the issue only crystallized following the Heywood arbitration award issued by Arbitrator Albertyn. It is then that the Union became aware of the Company’s interpretation, as clarified in Mr. Fisher’s letter, and it is then that it moved expeditiously to file this policy grievance.

In these circumstances I am satisfied that there is no substance to the timeliness objection. If I am incorrect in that conclusion I would, in any event, exercise my discretion under the provisions of the Canada Labour Code to grant an extension of time limits for the purposes of having the true merits of this dispute heard and resolved. Nor, for the reasons also expressed above, can I conclude that this is a circumstance in which the doctrine of estoppel has any application.

For the foregoing reasons the Company’s preliminary objections to arbitrability are dismissed. The parties are further advised that the Arbitrator will hear extrinsic evidence with respect to the terms of the letter of agreement of April 29, 2002, should the parties choose to offer such evidence.

Dated at Ottawa this 19^th day of September, 2008.

_______________________________

Michel G. Picher

Arbitrator