AWARD

The parties are in disagreement with respect to the application of the Company’s Workplace Alcohol and Drug Policy and the terms of a letter of understanding reached between the parties on April 29, 2002, as relates to the scope of employees within the bargaining unit who are subject to alcohol and drug testing on the basis of reasonable cause or following an accident or incident.

The nature of the dispute is well reflected and summarized in a draft Joint Statement of Issues which was forwarded to the Company by counsel for the Union in a letter dated September 2, 2008. That statement reads as follows:

JOINT STATEMENT OF ISSUES

1. On or about October 27, 2004 CN issued its revised “Policy to Prevent Workplace Alcohol and Drug Problems”.

2. The union disputes CN’s assertion that pursuant to this Policy it may administer drug and/or alcohol testing, upon pain of discipline, with respect to non-safety sensitive employees in the union’s bargaining unit, in situations of “reasonable cause” or post accident incident circumstances.

3. The union states that if and when the company conducts such testing it violates SHP530, the Letter of Agreement dated April 29, 2002., Rule 43, Discrimination, Rule 27, Investigation Grievance Procedure – Just Cause, Rule 35, Safety and Health; any other related rules in the collective agreement, as well as the statute law as set out in CHRA.

4. The union requests a declaration that this aspect of the company’s Policy is unlawful and must cease forthwith.

5. CN states that the testing of all employees in the union’s bargaining unit is lawful, and consistent with the Letter of Agreement dated April 29, 2002. Further, CN submits that the union is estopped from grieving this matter due to the terms of the April 29, 2002 Letter of Agreement.

6. Finally, CN says the grievance ought to be dismissed because it is untimely.

I BACKGROUND

Following a hearing conducted on September 8, 2008, the Arbitrator issued a Preliminary Award dated September 29, 2008. Because the Preliminary Award usefully reflects the history of the arbitral treatment of the Company’s Workplace Alcohol and Drug Policy, as well as the efforts of the parties to come to some agreement as to which employees would be subject to drug and alcohol testing, and in what circumstances, it is useful to reproduce the following segment of that Preliminary Award:

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 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.

SHP 530 issued on July 18, 2000. It involved an extensive review of the Company’s original “Policy to Prevent Workplace Alcohol and Drug Problems” and made an extensive number of findings and directions. For the purposes of this dispute the following two paragraphs drawn from the conclusion of the Award are particularly pertinent:

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 breathalyser 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.

As of the issuing of SHP 530 the parties had obviously not turned their minds to the identification of employees within the bargaining unit who occupy risk sensitive positions for the purposes of the Policy as it was qualified by the Arbitrator’s Award. I retained jurisdiction with respect to the interpretation and implementation of the Award, which would include any disagreement which the parties might encounter concerning the identification of risk sensitive positions. As noted in the Preliminary Award quoted above, “…risk sensitive employee … came to be referred to as safety-sensitive employees.” For the purposes of clarity, in this Award no distinction is made between the concept of an employee who is risk sensitive and one who is safety sensitive. They should be read as interchangeable. Either phrase is meant to refer to an employee whose normal duties and responsibilities, having regard to such factors as the location and environment of work performed, the tools, equipment, vehicles or premises utilized are such that any physical impairment of the employee would risk causing significant damage to property or injury to the employee, to fellow employees or to the public. By way of context, it may be noted that all running trades employees represented by the Teamsters Canada Rail Conference have, by the agreement of their union with the Company, been deemed to be safety sensitive for the purposes of the Company’s Drug and Alcohol Policy. The same is true for employees of the Engineering and Maintenance of Way Department, as a result of a similar agreement between the Company and the then Brotherhood of Maintenance of Way Employees (BMWE). The employees governed by Collective Agreement 12, who are the subject of the instant dispute, work in the Company’s shops, yards and, particularly in the event of a derailment, at road locations. Some of the classifications to be found at rule 52 of the collective agreement include car mechanics, heavy duty mechanics, electricians, crane operators, mechanic helpers, coach cleaners and car mechanic inspectors. Bargaining unit employees are involved in the inspection and preparation of trains for departure from terminals, the inspection and repair of locomotive power units and freight cars as well as the performance of wrecking work associated with derailments. Their duties variously include the operation of different types of heavy equipment, including welding equipment, in large main shops, in smaller running point shops as well as in yards where they may be involved in the movement of locomotive units and cars in and around shop tracks.

The substance of the parties’ dispute in the case at hand concerns the meaning and application of the Letter of Understanding of April 29, 2002, the pertinent parts of which are reproduced above. Simply put, the Union’s position builds on the conclusion of the Arbitrator in SHP 530 to the effect that only safety sensitive employees are to be subject to alcohol and drug testing, whether such testing is in relation to pre-screening in the event of promotion or assignment into a safety sensitive position or, alternatively, in the event of reasonable cause drug and alcohol testing at the direction of the Company, or drug and alcohol testing following an accident or incident. In the Union’s view, by the language of the Letter of Understanding, the parties identified a relatively limited number of employees who would be subject to the testing provisions of the Company’s drug and alcohol policy: the three numbered paragraphs within the Letter of Understanding would cover car mechanics operating equipment in emergency wrecking services such as ancillary cranes, hy-rail cranes, wreck dozers, as well as other related equipment, with persons working only as groundspersons being excluded. Additionally, all persons assigned to operate cranes of 60 ton capacity or greater as well as positions which involve the operation of track equipment of any kind outside of yard limits would be captured by the Policy. In the Union’s view the policy would not, therefore, apply to all other bargaining unit employees. For example, by the Union’s interpretation, employees engaged in the inspection, preparation and brake testing of trains prior to departure from terminals would be excluded, as would car mechanics and heavy duty mechanics involved in the inspection and repair of rail cars and locomotives, whether working in shops, in yards or at road locations.

The Company advances an entirely different view of the intent and meaning of the Letter of Understanding. It submits that the classifications of employees identified in the three numbered paragraphs within the Letter of Understanding were agreed to for the sole purpose of identifying positions which would require pre-screening, including alcohol and drug testing, when an employee is first appointed, promoted or assigned into such work. It submits that it is with reference to “screening procedures” as noted in the paragraph immediately following the three numbered paragraphs that the jobs in question were identified, and for no other purpose.

The Company maintains that the second to last paragraph reproduced above reserved to the employer the right to have recourse to reasonable cause and post-accident drug and alcohol testing for all employees in the bargaining unit. It submits that that testing, to be clearly distinguished from pre-assignment screening, was not intended to be limited to the categories of employees identified in the three numbered paragraphs which appear in the Letter of Understanding. Counsel for the Company notes that the employees identified for the purposes of the three numbered paragraphs would represent little more than five percent of the workforce of the bargaining unit, and would exclude large numbers of employees who work in relatively hazardous conditions in shops, yards, and at derailment sites (at least for groundspersons) in a manner which he qualifies as absurd.

It may also be noted that on the same date, April 29, 2002, Council 4000 of the CAW executed a Letter of Understanding with the Company in virtually identical terms to that of Local 100. That Agreement, signed by Mr. Rick Johnston, President of Council 4000, identified as safety sensitive positions the following four categories:

1) All Hostler, Labourer Moving Units (LMU) and Locomotive Attendant positions.

2) All Heavy Equipment Operator positions (intermodal).

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

4) All positions under the jurisdiction of Collective Agreement 5.4 (Excavator Operator, etc.).

How can the parties have arrived at such a divergent understanding of the scope of permissible drug and alcohol testing for bargaining unit employees under the Company’s Workplace Alcohol and Drug Policy? As appears from the excerpt from the Preliminary Award reproduced above, it would not appear disputed that the decision of Arbitrator Albertyn in the grievance of truck driver Gord Heywood, an award dated October 16, 2007 led to the instant disagreement. Arbitrator Albertyn found that the duties of Mr. Heywood were safety sensitive and that, following his involvement in a collision between his truck and a railcar, it was appropriate for the Company to require him to be drug and alcohol tested as part of its post-accident investigation. Indeed, it emerged that for a number of years such tests had been required of employees other than those appearing in the numbered paragraphs of the Letter of Understanding of April 29, 2002, something the Union has qualified as a general oversight. In the result, the Heywood Award caused the parties to revisit the Letter of Understanding and to clarify their respective interpretations of the meaning of that document, which ultimately resulted in the current dispute.

II EVIDENCE

An important element of the background to the negotiations between the parties leading to the Letter of Understanding of April 29, 2002 is the evolution of the regime under which employees deemed to occupy safety sensitive positions have traditionally been required to undergo periodical medical assessments. The unchallenged evidence respecting that evolution is reflected in the will-say statement filed on behalf of Ms. Kathy Smolynec, Senior Manager of CN Occupational Health Services. Ms. Smolynec’s statement reads, in part, as follows:

3. Based on our review of SHP 530 and our various discussions, CN was focused on two main issues arising out of SHP 530: the identification of risk-sensitive employees; and second, the use of post-accident/incident and reasonable cause drug and alcohol (“D&A”) testing regardless of whether or not the position held is safety-sensitive.

4. Up to approximately June 2000, CN was operating under a provision known as “General Order 0-9” (“GO 0-9”). GO 0-9 obligated Canadian railways to put in place certain medical assessments, including pre-screening for employees that would occupy safety sensitive positions.

5. In June of 2000, the Federal Minister of Transport approved new rules under the Railway Safety Act (“RSA Safety Critical Rule and Medical Rule”), which were to become effective November 29, 2001 at which time GO 0-9 would be repealed.

6. Under the RSA Medical Rules, only newly defined Safety Critical Positions are subject to regulated medical requirements. Other positions (including shop crafts) previously covered under GO-O9 were to be covered by railway policy either as “safety sensitive positions” or as “non safety sensitive positions.” I have set out below the identification of the 3 safety classifications and their content that arose as a result of the RSA Safety Critical Rule and Medical Rule, relevant agreements and company policy:

(i) Safety-Critical Positions

Safety Critical Positions are limited to those employees engaged in the direct operation of trains (engineers, conductors and rail traffic controllers). For persons occupying a safety-critical position a medical assessment is required pre-placement, periodically, and whenever medically justified. If an employee during the pre-placement or periodic assessment is found to have a medical condition which can impact the safety of railway operations, (including a substance abuse disorder), the employee may be subject to ongoing medical monitoring, including, for example, monitoring of the stability of the substance use disorder using medical assessments or tests (eg. Blood or urine analyses) as indicated by a physician.

(ii) Safety-Sensitive Positions

The employees in this category are those not in safety-critical positions that the company and relevant union agree are in safety-sensitive positions. Employees within this category are required to undergo medical assessments prior to placement in their position and whenever medically justified. The main difference between this category and the safety-critical category is that employees in this category are not subject to periodic medical assessments. The program for medical assessments of safety sensitive employees was discussed with CAW at the Master H&S Committee.

(iii) Non-Safety-Critical/Non-Safety-Sensitive Positions

Employees that come within this category are all those who are not defined as safety critical by the RSA or as safety sensitive by agreement with the unions. Employees in this category are not obligated to undergo D&A testing as part of the medical assessments pre-placement, and if there are apparent concerns for fitness for duty they will be addressed by asking employees to provide a certificate of fitness for their own physician. In exceptional cases, and with agreement from the employee’s trade union if he or she is represented by a trade union, fitness for duty assessments can be arranged by CN.

7. In all cases, it was anticipated that all 3 categories of employees would be subject to the CN D&A policy including provisions for post accident/incident and reasonable cause D&A testing.

8. I was in attendance at a number of the meetings with CAW that ultimately resulted in the execution of the Letters of Understanding dated April 28, 2002 (“the April LOU”). Generally speaking, the driver in the discussions from the CAW was the identification of safety-sensitive positions both for the purpose of the CN D&A policy provisions for pre-employment drug testing and for the purpose of fitness for duty assessments. The CAW representatives had indicated that they wished to limit the number of positions deemed to be safety sensitive in order to limit the number of employees subject to pre-placement drug and alcohol assessments and so subject to ongoing medical monitoring. Mr. Fisher on behalf of CN and myself were satisfied to proceed with the identification of a more limited number of CAW employees as being safety-sensitive positions as a resolution of limited number of CAW employees as being safety-sensitive positions as a resolution of SHP 530, because it was always clear that CN would maintain the right to test any employee (safety-sensitive or not) post-accident/incident and for reasonable cause.

9. If CN had not had the ability to implement post-accident/incident and reasonable cause D&A testing for all employees regardless of their safety-sensitive classification, CN would never have agreed to limit the definition of safety-sensitive positions as agreed in the LOU but would have insisted that all CAW employees in positions where the work could have a safety impact be subject to pre-placement drug and alcohol testing as part of a medical assessment.

The history of the negotiations is also reflected in the will-say statement of CN’s Director of Labour Relations, Mr. Douglas Fisher. Mr. Fisher’s statement relates his negotiations, primarily with Mr. John Moore-Gough, President of CAW Local 100 at the time of the commencement of the negotiations, as well as with Mr. Rick Johnston, then President of CAW’s Council 4000. The negotiations are described as having occurred on some five occasions between September of 2001 and April of 2002. Mr. Fisher’s statement reads, in part, as follows:

12. As I noted earlier, the CAW was very determined to attempt to limit the number of positions that would be deemed to be risk-sensitive for a variety of reasons. In particular, where a position was deemed risk-sensitive under the former General Order 0-9 (“GO 0-9”), and thereafter as “Safety-Critical” by the new safety and medical rules promulgated under the Railway Safety Act by the Minister of Transportation and made effective November 29,2 001 (which also had the effect of repealing GO 0-9), the history and substance of which is set out at the will-say of Kathy Smolynec which I have read and agree with, an employee that is pre-placement screened and is discovered to have a condition that may affect their ability to work safely must be monitored thereafter. Approximately 25% of the CAW workforce that is deemed safety-sensitive must be monitored because of conditions that were discovered either during the medical pre-placement screening or during other medical assessments. The CAW members subject to on going medical monitoring is a source of consternation for the CAW leadership and so the CAW wanted to limit the expansion of the number of such persons as far as possible.

13. From the time negotiations commenced in earnest up until approximately early January of 2002, myself and Mr. Moore-Gough and Mr. Johnston were focused on the identification of the positions which would be deemed to be safety-sensitive, and therefore require medical pre-screening which would include D&A testing. Because this approach might exclude positions that should have been designated safety-sensitive (given job content etc.) for the purposes of the D&A testing, I was adamant at all times that CN would be reserving the right to test any employee in post-accident/incident or just cause circumstances. This approach on my part, I felt, also met the often-expressed concern by Mr. Moore-Gough that his members not be subject to standards different than CN employees represented by other trade unions or not in a trade union at all. In other words, Mr. Moore-Gough did not want his members subjected to D&A testing if other persons would not be so tested in similar circumstances.

14. Parallel with the discussions between CN and the CAW, CN had undertaken similar discussions with the Brotherhood of the Maintenance of Way Employees (“BMWE”). Those discussions resulted in a Letter of Understanding dated March 8, 2002 (copy attached). Generally speaking, the BMWE recognized that attempting to draw distinctions within their membership as to which positions were and were not safety-sensitive would not be fruitful or manageable. In the result, the BMWE agreed that all of its members were in safety-sensitive positions, and also agreed that, in addition to D&A pre-screening, all members were subject to “probable cause” testing and did so because CN had stated that employees outside the designated safety-sensitive definition would also be subject to reasonable just cause D&A testing (see page 2 of Appendix 1 to the BMWE Letter of Understanding dated March 8, 2002).

15. By January of 2002, my direct negotiations with Mr. Moore-Gough and Mr. Johnston had matured to the point where we had mutually arrived at a tentative understanding of the positions that might be identifiable as safety-sensitive. I captured the state of our discussions with the CAW in a memo that I wrote to Mr. McBain and others on January 21, 2002 (copy attached).

16. As the discussions moved forward to April 2002, I maintained my insistence on the inclusion of the reference to post-accident/incident and just cause D&A testing for all employees and not just safety-sensitive employees. The inclusion of this particular right was all the more important because CN and CAW were moving towards agreement on the identification of the safety-sensitive positions that would exclude certain positions from pre-screening notwithstanding that the persons occupying the positions regularly work around heavy and potentially lethal machinery and the equipment (for example, the shop carmen).

17. The CAW and I exchanged at least one draft version of the April LOU before execution (enclosed as Tab 17 to the Union Book of Documents, Volume 1 already filed) but ultimately executed the April LOU. The final version of the April LOU which was executed by the parties saw the movement of the reference to post-accident/incident and just cause D&A testing to a different location within the letter so there could be no confusion as to its intention – namely the right of CN to test any CAW employee post-accident/incident regardless of his or her classification and/or safety-level designation. I advised Mr. Moore-Gough that I moved the clause within the letter to establish this distinction.

18. After the conclusion of the execution of the April LOU, on May 22, 2002 I wrote to Mr. Dixon confirming the agreement and the preservation of the post-accident/incident D&A testing for all employees (see the attached memo dated may 22, 2002).

19. If the CAW had not agreed to post-accident/incident and just cause D&A testing for all employees regardless of their safety-sensitive classification, CN would never have agreed to limit D&A pre-placement testing to just the safety-sensitive positions as defined under the RSA Safety/Medical Rules, but would have insisted that all CAW employees occupying safety-sensitive positions based on job content etc. be subject to pre-placement D&A testing.

In the Arbitrator’s view it is important to note that there appears to have been some discontinuity of nomenclature which came to bear in the drafting of the Letter of Understanding of April 29, 2002. On their face, the statements of both Ms. Smolynec and Mr. Fisher seem to assert that employees occupying non-safety sensitive positions would be subject to reasonable cause as well as post-accident/incident drug and alcohol testing. That, however, is obviously contrary to the clearly stated conclusions of the Arbitrator in SHP 530. It is there stated, without qualification, that non-safety sensitive employees are not to be subject of any drug and alcohol testing, without exception. The reasoning in that regard is relatively simple: an employee performing wholly clerical functions within a normal office setting should no more be subject to drug and alcohol testing than a bank teller, as was confirmed by the Federal Court of Appeal in Canadian Civil Liberties Association v. Toronto Dominion Bank, (1998), 32 C.H.R.R. D/261 (F.C.A.). The Court there confirmed that the employer of bank tellers had not demonstrated a sufficient connection between the requirement of drug and alcohol testing and the operation of its non-safety sensitive enterprise, as regards their work, so that to require drug and alcohol testing of them was in violation of the protections of the Canadian Human Rights Act. To be clear, nothing in this award should be taken as an endorsement by the Arbitrator of the Company’s assertions that all employees, including employees who are not in safety sensitive positions, are properly subject to drug and alcohol testing. Generally, any drug test administered to an employee who does not hold a safety sensitive position would be an abuse of management’s rights under the collective agreement, contrary to the Canadian Human Rights Act and in violation of the findings and directions of SHP 530.

In fact, it appears to the Arbitrator that the Company’s assertions with respect to the drug testing of employees who do not hold safety sensitive positions flows, to some degree, from the confusion resulting from the negotiations of the parties for the purposes of the Letter of Understanding of April 29, 2002. I accept the evidence of Ms. Smolynec that much of the discussion between the parties surrounded the identifying of employees who would be subject to pre-screening before they undertake the duties and responsibilities of positions deemed to be safety sensitive. It does not appear challenged that there was a desire on the part of the Union to limit the number of employees who would be subject to that obligation, as it might also involve periodic reassessment of those employees, in keeping with the rules promulgated by the Federal Minister of Transportation in June of 2000 under the Railway Safety Act, which repealed GO 0-9. The new RSA medical rules defined safety critical positions, focusing primarily on jobs which involve the movement of trains and other track equipment. It is on that basis, it appears, that the parties tended to focus on bargaining unit employees involved in the movement of various forms of track equipment. Because they defined those persons, and only those persons, as holding “safety-sensitive positions under the terms of the Policy” their agreement leaves open the suggestion that all other employees in the bargaining unit, including carmen responsible for the inspection and preparation of trains, shop welders, heavy equipment operators and truck drivers, to give but a few examples, are somehow not involved in safety sensitive work that would justify the exceptional recourse to drug and alcohol testing in a manner consistent with the award in SHP 530.

In the Arbitrator’s view there is something obviously counter-intuitive in concluding that employees who work in rail yards around live tracks, in close proximity to switching operations, for example in the car inspection and repair work of carmen, or in heavy equipment shops, are not involved in safety sensitive work within the meaning of SHP 530, or the Company’s Workplace Alcohol and Drug Policy. One need look no further than the arguably reasonable conclusion drawn by Arbitrator Albertyn in the Heywood award to the effect that the carman who was the grievor in that case did perform safety sensitive work. Given the language of the jurisprudence of drug and alcohol testing, I find it difficult to understand on what basis the Company would have adopted the term “safety sensitive” to refer to only a very small group of the employees of the bargaining unit who might operate on-track equipment, thereby designating the great majority of employees in the bargaining unit, including employees who work in situations of relatively obvious peril, as being “non-safety sensitive”.

In fairness, however, the position of the Company’s representatives was, I am satisfied, entirely consistent throughout the time of the negotiations with the Union leading to the Letter of Understanding of April 29, 2002. Following on the changes to the Railway Safety Act and the newly adopted RSA medical rules, management appears to have taken the view that it was acceptable to agree with the Union that safety sensitive positions would be restricted to those classifications of employees involved in the operation of on-track equipment. Critically, however, I accept that the Company’s willingness to severely limit that group was entirely for the purpose of delineating those who would be required to undergo pre-screening drug and alcohol testing before being assigned, transferred or promoted into such a position. It was not, in the employer’s mind, intended as a restriction on its ability, under the Policy, to require workplace drug testing of virtually all bargaining unit employees in circumstances of reasonable cause or post-accident/incident. Indeed, the evidence of Mr. Fisher, which the Arbitrator accepts, is clearly to that effect, stressing that the employer’s position was at all times communicated to the Union’s representatives. It is on that basis that the Company maintains that the proviso contained in the second to last paragraph of the excerpt reproduced above from the Letter of Understanding of April 29, 2002 was intended. In its submission the words “Furthermore the Union acknowledges that the Company has the right, under the terms of the Policy, to impose drug and/or alcohol test where reasonable cause exists or post-accident, as the case may be.” was clearly intended to preserve the Company’s discretion to apply such drug testing to all bargaining unit employees, including those not included in the identified category of “safety sensitive employees” who must be subject to pre-screening drug and alcohol tests prior to assuming the duties identified in the three numbered paragraphs of the Letter of Understanding. It is in that context that the Company’s counsel and witnesses assert to the Arbitrator that it would prompt consternation to believe that the employer, having secured the confirmed right to apply its drug and alcohol testing policy to all safety sensitive employees through the conclusions in SHP 530, and having negotiated the inclusion of all running trades employees as well as all maintenance of way employees into the category of safety sensitive employees would, by the negotiation of the Letter of Understanding of April 29, 2002, have effectively excluded 95 percent of the instant bargaining unit’s employees, individuals generally working in relatively dangerous circumstances, from the operation of its drug and alcohol testing policy.

The Union’s view of the negotiations and the meaning of the Letter of Understanding of April 29, 2002 was given chiefly through the evidence of Mr. John Moore-Gough. Retired in August 2005 from his then position of Staff Representative, Mr. Moore-Gough can fairly be described as one of the most experienced, able and respected Union officers of the Arbitrator’s experience. As noted above, Mr. Moore-Gough, who was elected president of Local 100 in February of 1995 and held that post until the end of June of 2001, was the point man for the Union on the negotiation of the Letter of Understanding, having become a full-time staff representative at the time it was executed. Mr. Moore-Gough testified that from the outset he had concerns about the Company’s ability to administer reasonable cause as well as post-accident/incident drug and alcohol testing. He was particularly concerned that post-accident/incident testing could occur in circumstances which did not in fact disclose reasonable cause. Mr. Moore-Gough notes as a starting point of negotiations a letter dated February 19, 2001 sent to counsel for the Company by Ms. Catherine Gilbert, counsel to the Union. That letter identifies the positions which the Union maintained should be qualified as risk sensitive, in the following terms:

Car mechanics on secondary assignments as wrecking crane operators and road repair truck operators moving on the mainline under Agreement 12, provided that all outside operators are subject to CN’s drug and alcohol testing policy.

Ms. Gilbert’s letter was specific, also listing “non-risk sensitive employees”, to include such positions as car mechanic, heavy duty mechanic, electricians and helpers, crane operators, coach cleaners, electricians and heavy duty mechanics. The same letter also listed employees represented under Collective Agreement 5.1 who should be deemed non-safety sensitive including such positions as messengers, yard checkers, crew bus drivers, hostlers, labourers, engine attendants, engine watchmen, locomotive attendants, heavy equipment operators, heavy duty mechanics, terminal equipment operators, intermodal clerks, lead hand clerks, material attendants, stores attendants, stores clerks, shipper/receivers, crane operators, chauffeurs and first aid attendants, to name but only some. Mr. Moore-Gough notes that the bulk of the positions under Collective Agreement 5.1 are clerical, such as payroll clerks, accounts receivable clerks and customer service representatives.

Mr. Moore-Gough relates that the issue of which employees would be designated as safety sensitive arose incidentally at a meeting in the Chateau Champlain hotel in Montreal on or about April 11, 2001. Although the meeting was principally intended to address the administration of the Company’s long term disability plan, he relates that the issue of safety sensitive employees in the wake of SHP 530 did come up. It seems that it arose in respect of a discussion of the entitlement of drug or alcohol addicted employees to long term disability benefits. He relates that he then had a discussion with Ms. Smolynec with respect to the possible cost to the Company of administering pre-screening drug testing to car mechanics working in yards, if drug and alcohol testing were to apply to them and not to shop employees. According to his account Ms. Smolynec expressed concerns about the excessive costs that might be visited upon the Company in those situations, as car mechanics move with some frequency between shop and yard functions.

Mr. Moore-Gough further relates that the first meeting of substance with respect to the issue of designating employees as safety sensitive occurred between two teams representing both parties at CN headquarters on April 27, 2001. Mr. Moore-Gough’s account of that meeting confirms that the parties seemed to be focused on identifying employees who must be pre-screened before assuming safety sensitive duties. As it he relates it, there seemed to be an understanding that there might be a resolve to the outstanding judicial review taken by the Union against the arbitrator’s award in SHP 530 in exchange for an acceptable list of risk sensitive positions in respect of which employees must undergo pre-screening as part of the bidding process. According to Mr. Moore-Gough’s recollection, no one mentioned the separate question of testing employees who might not be designated as safety sensitive on the basis of reasonable cause or in post-accident/incident situations.

It appears that at one point Ms. Smolynec made reference to GO 0-9 as a basis for determining safety sensitive categories of employees and, according to the evidence of Mr. Moore-Gough, the discussion focused to a great extent on employees involved in the operation of track equipment. Mr. Moore-Gough states that he indicated that Local 100 would be inclined to agree to the inclusion of employees who operate track equipment as well as crane operators performing lifts over 60 tons as being properly designated as safety sensitive. During his testimony in-chief, Mr. Moore-Gough indicated that if the Company had tabled the proposition that all employees in the bargaining unit could be subject to reasonable cause drug testing, “I would have walked.”. According to his recollection that simply never came up.

Mr. Moore-Gough describes as critical to the negotiation a letter which was addressed to his successor as president of Local 100, Mr. Bryon DeBaets. That letter, dated January 23, 2002, was signed by Mr. Fisher, whose opening paragraphs describe it as an attempt on the part of the Company to resolve all outstanding issues between the parties. The letter reads, in part, as follows:

We take our guidance from Mr. Picher as stated at page 105 of his award: “The Arbitrator cannot accept that employees whose duties and responsibilities include such functions as operating cranes forklifts, trucks and other road vehicles, hy-rails or other equipment which moves on rails, can be said to be other than [in] risk sensitive employment.”

Therefore, in order to address the Union’s concerns regarding the designation of certain positions (within the Shopcraft bargaining unit), as risk sensitive for the purposes of “the Policy” and its application, and in full and final settlement of the Union’s grievance, the Company proposes that the parties agree to the designation of the following positions as being risk sensitive:

1) All secondary assignments bulletined under Rule 6.21, including spares, except grounds persons, and

2) All crane operator positions where cranes of 60 ton capacity or greater are utilized, and

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 routine basis, to operate “on-track equipment” of any type (including but not limited to locomotives, tow motors, hy-rail vehicles etc.) outside of yard limits.

As indicated previously, following settlement of this dispute, present incumbents of the above-noted risk sensitive positions, will not be subjected to screening procedures if they move from one risk sensitive job to another. However, the Company reserves its right to impose drug and/or alcohol tests where reasonable cause exists or post accident, in accordance with the terms of the “the Policy”.

Should any of these positions become vacant, and/or new or additional positions of a like nature be created, and bulletined, otherwise successful applicants will be required to submit to and pass a drug and alcohol screening as a pre-condition to being awarded any of those assignments.

Mr. Moore-Gough notes that there was a first iteration of the Letter of Understanding in the form of the letter dated April 29, 2002. At the Union’s request slight modifications were made to the first draft. For example, the statement that applicants to jobs that are safety sensitive “must pass drug and alcohol screening,” was changed, in the final version which is the subject of this arbitration to read, “…must undergo drug and alcohol screening.” and nothing else of substance was changed. It may be noted, however, that as contrasted with Mr. Fisher’s letter of January 23, 2002, the reference to the Company reserving its right to impose drug and alcohol testing in reasonable cause circumstances or post-accident is substantially repositioned within the letter. While in the first draft it immediately followed discussion of the employees identified for pre-screening, in the final version of the letter of April 29, 2002 it became part of the second to last paragraph, following other paragraphs dealing with such issues as test being considered valid for one calendar year, the practice to be followed in relation to extended leaves of absence and the case-by-case consideration of unauthorized absences.

In the result, the unchallenged evidence of Mr. Moore-Gough is that the Union agreed to an identified list of employees who, in its opinion, were to be considered as safety sensitive, and therefore to be the only employees subject to drug and alcohol testing, whether by pre-screening upon bidding a position designated as safety sensitive or in circumstances of reasonable cause and post accident/incident testing.

It would appear that in their discussions the parties effectively paid little or no direct or shared attention to the overall application of the Policy to employees who might work in perilous situations but who would not be designated as holding safety sensitive positions for the purposes of the general application of the Company’s Policy, including drug and alcohol testing in circumstances of reasonable cause as well as post-accident/incident. While I am satisfied that the Company in good faith believed that it was addressing those other situations by the inclusion of the proviso sentence reproduced above, there is not a jot of documentary evidence to confirm that it ever clearly communicated that to the Union’s representative nor, after some eight years, is there any oral evidence of any clear recollection of verbal discussions to the same effect. That, unfortunately, is the state of the extrinsic evidence, which the Arbitrator ruled would be admissible in these proceedings.

What, in fact, does the extrinsic evidence disclose? The Arbitrator is satisfied that what emerges from the totality of the evidence is that in their discussions leading to the execution of the Letter of Understanding of April 29, 2002 the parties largely were talking past each other and that, in fact, there was never a meeting of the minds. For reasons which it best understands, and notwithstanding contrary conclusions clearly expressed in SHP 530, the Company appeared to proceed on the understanding that it could apply its Workplace Alcohol and Drug Policy to all employees, and that employees who do not work in safety sensitive positions can be made subject to reasonable cause drug and alcohol testing as well as such testing in the event of an accident of incident. As indicated above, the Arbitrator has some difficulty with that understanding. A review of the Canadian arbitral jurisprudence, much of which is examined in some detail in SHP 530 as well as subsequent arbitral awards in this country, is uniform in holding that the exceptional resort to drug and alcohol testing within the workplace is to be limited employees involved in safety sensitive work situations, in other words persons who are generally referred to in the jurisprudence as being safety sensitive employees. It is not surprising to find the awards emerging from such industries as chemicals, oil refineries, trucking and sawmill operations. In dealing with the rights and obligations of employers and employees in this sensitive and exceptional area, a consistent use of terms and labels is clearly important. The Arbitrator can see no lawful basis for the broad and unqualified view expressed by Ms. Smolynec that “…it was always clear that CN would maintain the right to test any employee (safety-sensitive or not)…”.

According to Mr. Fisher the proposal essentially put to the CAW representatives was that if they were prepared to accept reasonable cause and post-accident testing the Company could live with a smaller group of safety sensitive employees. As he stated it, the Company’s wish to extend drug and alcohol testing to that larger group who were not designated safety sensitive, “…was not intended for bank teller occupations”.

During the course of his testimony, in answer to questions from counsel for the Company, Mr. Fisher explained that in the final draft of the letter of April 29, 2002 he moved down the reference to reasonable cause and post-accident/incident testing, “…to highlight that post-accident testing is separate from the description of risk sensitive.”. He relates that he is not sure whether he had a discussion of that with Mr. Moore-Gough or with Mr. DeBaets, but he recalls that he did indicate that the change was made and why it was it made.

Mr. Fisher confirms in his evidence that for a period of five years following the signing of the Letter of Understanding of April 29, 2002 the Company remained unaware of any concern of the Union with respect to the application of reasonable cause as well as post-accident/incident drug and alcohol testing to employees other than those specifically enumerated as being safety sensitive within the Letter of Understanding. He notes that Union representative Brian McDonagh seemed uncertain of the situation when the grievance of Mr. Heywood arose. Noting that the Company had then been testing employees like Mr. Heywood for five years, Mr. Fisher concluded that Mr. McDonagh must not have been privy to the Letter of Understanding of April 29, 2002. Mr. Fisher confirmed that going into negotiations with the CAW, one of his goals was to ensure that reasonable cause and post-accident/incident drug and alcohol testing would be available to apply to all employees in the bargaining unit. He states that he believes that he achieved that goal in the negotiation and execution of the Letter of Understanding of April 29, 2002. He relates that the Company was prompted, in part, by guidelines issued by the Canadian Human Rights Commission, a document which apparently indicates that post-accident drug and alcohol in a safety sensitive environment is permissible under the Canadian Human Rights Act. He states that the Company did not then seek to include purely clerical employees in the categories of persons who could be subject to drug and alcohol testing.

With respect to the second to last paragraph of the letter which deals with reasonable cause and post-accident/incident testing, Mr. Fisher testified that he included the phrase “under the terms of ‘the Policy’” with respect to the Company’s right to perform such testing, stressing that the language of the policy itself states that it clearly applies to all employees. In his view, therefore, as the paragraph invokes the terms of the Policy, it is clear that the reference to reasonable cause and post-accident/incident testing must be understood to apply to all employees, and not only to those employees who were designated as safety sensitive for the purposes of pre-assignment screening.

Under cross-examination Mr. Fisher was asked how he could have the understanding he did in light of prior correspondence between the parties. In that regard he was referred to a Company letter dated August 1, 2000 sent to representatives of a number of unions, including Mr. Moore-Gough on behalf of CAW Local 100. Signed by Mr. John Dalzell, Vice-President, Risk Management, that letter expressly stated:

In order to ensure a consistent application of the Policy to Prevent Workplace Alcohol and Drug Problems, we want to clarify the circumstances that would trigger a mandatory alcohol and/or drug test, for employees occupying risk-sensitive positions. Specifically, Section 2.4.3, under sub-heading “Reasonable Cause”, contemplates mandatory drug or alcohol testing:

Where reasonable cause exists to suspect alcohol or drug use or possession in violation of this Policy, including after an accident or incident.

Mr. Fisher responded that he did not consider that his approach was a change from what was expressed in Mr. Dalzell’s letter. Rather, he characterizes Mr. Dalzell’s letter as primarily focused on identifying those situations which would qualify as an accident or incident sufficient to trigger an alcohol or drug test. He also stated that to his recollection there was no fundamental disagreement in his discussions with Mr. Johnston with respect to Council 4000 employees under Collective Agreement 5.1 who performed essentially clerical functions. As he put it, the general understanding in those discussions was that clerks “would not get into situations” where testing would apply.

When challenged foursquare in cross-examination by counsel for the Union that he never advised Mr. Moore-Gough after the issuing of SHP 530 that CN wanted to return to full reasonable cause as well as post-accident/incident testing for all employees in the CAW’s Local 100 bargaining unit Mr. Fisher responded “I believe I did.”. He then added that he had no notes or anything else in writing to confirm that belief.

The evidence also indicates that Mr. Fisher had some discussions with Mr. Rick Johnston, then president CAW Council 4000. As Mr. Johnston testified, he had delegated Mr. Moore-Gough to be the principal negotiator on behalf of Council 4000, along with his negotiations on behalf of Local 100.

III ARGUMENT

Through their written briefs as well as extensive oral arguments, counsel for both parties made extensive submissions to the Arbitrator. In his brief counsel for the Union stresses that, on the Union’s view of the facts, CN never communicated to the Union a position to the effect that the discussions surrounding the definition of risk sensitive positions related only to the issue of pre-placement testing, and that otherwise all employees would be subject to reasonable cause and post-accident/incident drug and alcohol tests. Counsel for the Union stresses the August 1, 2000 letter sent by Mr. Dalzell to a number of union representatives. That letter, which followed the award in SHP 530, concerned the Company’s intention to amend its Policy to conform to the award. Counsel notes Mr. Dalzell’s statement:

“…we want to clarify the circumstances that would trigger a mandatory alcohol and/or drug test, for employees occupying risk-sensitive positions. Specifically, Section 2.4.3, under sub-heading “Reasonable Cause”, contemplates mandatory drug or alcohol testing:

Where reasonable cause exists to suspect alcohol or drug use or possession in violation of this Policy, including after an accident or incident.

In light of the above, counsel for the Union stresses that at all material times prior the execution of the Letter of Understanding of April 29, 2002, the Company was well aware that reasonable cause testing as well as post-accident/incident testing for drug and alcohol use was, under both the Policy and SHP 530, an extraordinary measure which could apply only to employees who occupy safety sensitive positions. He argues that in light of that understanding it is highly counter-intuitive to conclude that the Union would have simply contracted away its right to insist that only safety sensitive employees should be subject to drug and alcohol testing under the Company’s Policy, as the Company now asserts.

With respect to the application of extrinsic evidence to resolve any ambiguity in the text of the Letter of Understanding of April 29, 2002, counsel argues that all of the extrinsic evidence supports the Union’s view that the parties clearly intended that employees not designated as safety sensitive should not be subject to reasonable cause or post accident/incident drug and alcohol testing. He notes that during the course of correspondence and discussions between the issuing of SHP 530 and May of 2002 there was never an exchange of any document between the parties which would confirm the Company’s view that the Union had somehow agreed that employees designated as non-safety sensitive would be subject to drug and alcohol testing. He recalls that the process was to some degree launched by a letter from Union counsel, Ms. Gilbert, first proposing the list of employees who could be agreed to be safety sensitive. There is, he says, no indication from the Company at any time that the negotiations between the parties were intended for only the partial purpose of dealing with pre-placement drug testing and that reasonable cause and post-accident/incident testing would be dealt with separately.

Counsel emphasizes the first paragraph of the letter of April 29, 2002 which expressly states that the discussions between the parties, and the letter itself, were “…concerning the designation of positions as safety sensitive under the terms of the Policy to prevent workplace alcohol and drug problems (‘the Policy’), and more specifically pursuant to the award of Arbitrator M. Picher, which is referred to as SHP 530.” Counsel submits that the words used are clear, and plainly embrace the determination of employees who are to be designated as safety sensitive for all purposes of the Policy. There is no basis, he argues, to conclude, as the Company would have it, that the subject of the discussions and the identification of employees was solely for the purposes of pre-assignment drug and alcohol screening. In conclusion, with respect to the documentary evidence, counsel reminds the Arbitrator that there is simply not a jot of written communication anywhere in the record to suggest that the Company believed that the designation of safety sensitive employees was for the restricted purpose of pre-screening for job assignments or that it at any point advised the Union that it believed it reserved the right to impose reasonable cause and post-accident/incident drug and alcohol testing on employees who are not designated as holding safety sensitive positions.

Counsel further argues that the oral evidence is to the same effect. Noting that the testimony of Mr. Moore-Gough was given in a straightforward and consistent fashion, he stresses that nowhere in the discussions of Mr. Moore-Gough with either Ms. Smolynec or Mr. Fisher was there any indication from the Company to suggest that safety sensitive positions were being identified for only qualified purposes. He notes that much of the discussion may have been prompted by Mr. Moore-Gough’s suggestion to Ms. Smolynec early in the negotiations that SHP 530 could cause the Company problems if shop carmen should not be designated safety sensitive while yard carmen would, as the Company might face the excessive cost of drug and alcohol pre-screening every time a carman might be assigned from the shop to the yard.

Counsel also questions on what basis Mr. Johnston, as president of Council 4000, would have assented to allow the Company, through its interpretation of the Letter of Understanding of April 29, 2002, to drug test all employees in his bargaining unit, some 70 to 80 percent of whom occupy purely clerical positions. Counsel submits that it makes no sense to believe that Mr. Johnston would have agreed to grant reasonable cause testing in respect of those employees given that they could not be subject to such testing to the extent that they do not occupy safety sensitive positions, as clearly enunciated in SHP 530.

Counsel submits that the memorandum sent by Mr. McBain of CN to Vice-President Dixon and Mr. Dalzell on January 21, 2002 clearly indicates that the Company was of the view that the Arbitrator would not sustain the position that all bargaining unit employees must be viewed as occupying safety sensitive positions. He notes that on that basis, and in light of recent changes to the medical rules under the Railway Safety Act and the revocation of General Order 0-9, it became necessary for the Company to make new proposals. As Mr. Dalzell stated: “Our proposed changes would ensure that all future applicants to the designated safety sensitive jobs will be screened.”. In his memo, on that basis, he then designates the positions, largely reflected in the letter of April 29, 2002, which should be deemed to be safety sensitive with the additional note that the Company would reserve its right to impose reasonable cause and post-accident/incident drug and alcohol testing.

In approaching these documents counsel for the Union cautions that the extrinsic evidence is fragile at best. In that regard he cites the decision of the arbitrator in CROA Case No. 1637, stressing that the best evidence is the written word. On that basis he maintains that all of the documents before the Arbitrator sustain the Union’s view that the parties agreed on the categories of employees who would be deemed to be safety sensitive for all purposes under the terms of the Company’s Workplace Alcohol and Drug Policy. In closing, he submits that the position of the Company is tantamount to asking the Arbitrator to reverse the decision in SHP 530. To the extent that the Company would now suggest that the parties agreed to drug testing for employees who do not occupy safety sensitive positions, that would be the result. He argues that any such change must be established by clear and unequivocal language, a condition which he submits is not demonstrated on the material before the Arbitrator.

Counsel for the Company makes a twofold submission. He submits, firstly, that the Arbitrator should sustain the Company’s interpretation of the meaning and intention of the Letter of Understanding of April 29, 2002. Alternatively, he submits that the Arbitrator should conclude that there was such a difference in the respective minds of the two parties’ signatory to that document that in fact they laboured under mutual mistake. On that basis he submits the Arbitrator should find that there was no meeting of the minds and effectively rescind the Letter, remitting the parties to restart their negotiations with respect to the designation of safety sensitive positions.

Counsel submits that a history of the discussions leading to the Letter of Understanding of April 29, 2002 clearly demonstrates that the parties were principally engaged in defining which positions should be designated as safety sensitive for the purposes of pre-placement drug and alcohol screening. Counsel maintains that it is a mischaracterization to suggest that the Company also intended to impose drug testing on employees who were in no way involved in safety sensitive work. He submits that the statement of reservation with respect to reasonable cause and post-accident/incident testing was intended by the Company as an acknowledgment by both parties that the Company can resort to such testing when any employee is engaged in what is in effect a safety sensitive activity, whether or not he or she has been designated as holding a safety sensitive position for the purpose of pre-placement screening. He gives as an example an employee whose duties are principally clerical who might, in a manner incidental to his duties, drive a company truck through a freight yard which is alive with rail car switching. While such a person may not be designated as occupying a safety sensitive position, he or she must nevertheless be subject, counsel argues, to the reasonable cause and post-accident/incident drug and alcohol screening expressly referred to in the text of the letter of April 29, 2002. As he put it: “For the Company, post-accident and reasonable cause testing goes to any person involved in a safety sensitive activity.”.

Counsel for the Company notes the evidence of Mr. Fisher and Ms. Smolynec to the effect that for Mr. Fisher the wish was to concede on the scope of positions deemed safety sensitive for the purposes of pre-placement screening in exchange for protecting the wider ambit of the Company’s right to perform reasonable cause and post-accident/incident testing. From the standpoint for Ms. Smolynec, in light of the revocation of GO 0-9 and the amendments to the medical rules under the Railway Safety Act, part of the Company’s interest was to emerge with a single policy to govern the ongoing placement of employees in positions designated as safety sensitive. He recalls that Mr. Fisher testified that he expressly moved the proviso about reasonable cause and post-accident/incident testing to a later point in the letter, to avoid any possible impression that it was intended to be restricted to the employees deemed to hold safety sensitive positions for the purposes of pre-assignment alcohol and drug screening. Noting questions which he put in evidence to Mr. Fisher, as well as to Mr. Moore-Gough, counsel for the Company argues that it would make no sense for CN to have effectively agreed to restrict the application of its entire drug and alcohol testing policy to little more than five percent of the bargaining unit workforce, as the Union would have it. He submits that the absurdity of the Union’s interpretation is further illustrated by a simple example. If the Union is correct, a bargaining unit truck driver driving inebriated in a live switching yard could not be alcohol tested, either on the basis of reasonable cause or post-accident/incident, merely because he does not hold a safety sensitive position which the parties agreed would require pre-assignment drug and alcohol screening. He stresses that the Company does not seek to impose drug testing, for example, on a clerk who bumps into a filing cabinet. He maintains that the Company’s understanding of the letter of April 29, 2002 does allow it to impose reasonable cause and post-accident/incident testing in any situation which is inherently safety sensitive.

Most fundamentally, counsel for the Company submits that both Mr. Moore-Gough and Mr. Fisher are sincere and genuine in their evidence. If that evidence is, as he submits, accepted by the Arbitrator in the case of both individuals it is clear that there was no meeting of the minds between the parties as they drafted and executed the letter of April 29, 2002. In that circumstance, given the extent of the mutual mistake under which the parties laboured, the Arbitrator can declare a rescission of the agreement and remit the parties to the position which they were in at the time SHP 530 was first issued.

IV DECISION

I turn to consider the merits of the dispute. At the outset I must stress that I do accept that both Mr. Moore-Gough and the principal witnesses for the Company, Mr. Fisher and Ms. Smolynec, gave credible and consistent testimony, presented honestly and to the best of their recollection. I am also satisfied, on the balance of probabilities, that the greater part of the discussions that went on between them was focused on the question of designating those positions which would require that an employee undergo a pre-assignment drug and alcohol screening. For the reasons reflected in the account of evidence related above, both parties had some interest in fashioning a relatively limited number of positions which would fall under that designation, particularly as regards the feasibility and potential cost of pre-assignment screening tests. On the one hand, the Union was mindful of limiting the scope of employees who would be subject to pre-screening tests as well as the recurring testing which some employees are required to undergo pursuant to the medical rules promulgated under the Railway Safety Act. On the other hand, the Company had an interest in avoiding an excessive burden of pre-assignment screening, as for example might occur when employees normally assigned to non-safety sensitive work within a shop are assigned, whether temporarily or more permanently, to work in a yard. The example of the carmen raised by Mr. Moore-Gough in his early exchange with Ms. Smolynec is a good example of a situation which the Company obviously had reason to want to avoid.

The problems encountered by the parties in the instant dispute plainly did not arise in the case of running trades employees and maintenance of way employees. As noted above, the unions representing both of those groups of employees agreed, apparently without controversy, to having all employees in their bargaining units designated as safety sensitive for the purposes of the Company’s Workplace Alcohol and Drug Policy. The situation is, however, plainly more complex as regards the CAW, and in particular when regard is had to employees in the bargaining unit of Local 100 as well as those employees, who perform largely clerical functions, who are represented by Council 4000. There is, at a minimum, much more to discuss with respect to the employees in these bargaining units, for the purposes of the application of the Workplace Alcohol and Drug Policy.

Notwithstanding the extensive evidence and submissions placed before the Arbitrator, the issue in this dispute is relatively narrow. It is, in essence, confined to the meaning of one sentence which appears in the Letter of Understanding of April 29, 2002:

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.

A related question is, of course, what the parties intended by their reference to “…the designation of positions as safety sensitive under the terms of the Policy to Prevent Workplace Alcohol and Drug Problems…” as well as their intention with respect to the phrase “…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.”

As the Union would have it, the positions which the parties designated as safety-sensitive within their Letter of Understanding of April 29, 2002 are the only positions which effectively fall under the terms of the Company’s Workplace Alcohol and Drug Policy. That would mean that not only are the designated employees, who are said to comprise perhaps five percent of the bargaining unit workforce, the only persons subject to pre-assignment drug and alcohol screening, but they would also be the only employees who could be subject to reasonable cause as well as post-accident/incident drug and alcohol testing in accordance with the Company’s Policy.

There is an enormous gap between the parties as to their understanding of the Letter of Understanding. In the Company’s view the designation of employees as occupying safety-sensitive positions is for the restricted purpose of identifying those jobs which require pre-appointment drug and alcohol screening, as part of the bidding process. As noted above, the Company maintains that the sentence with respect to the retention of its right to resort to drug and/or alcohol tests on the basis of reasonable cause or in post-accident/incident situations is intended to apply to any employee in the bargaining unit who, as the Company’s counsel articulated it, might be involved in any situation which is inherently safety sensitive. If the Union’s interpretation is accepted, the Company would have effectively given away a large part of what it gained by the award in SHP 530, to the extent that a wide range of employees, however engaged in safety sensitive activity or working in a safety sensitive location, would not be subject to reasonable cause as well as post-accident/incident testing, effectively restricting that protection to only some five percent of the bargaining unit workforce. On the other hand, if the Company’s interpretation is accepted, it would have gained something well beyond what it had under the terms of SHP 530, namely the ability to resort to reasonable cause and post-accident/incident drug and alcohol testing for employees whose positions are not safety-sensitive. That is something which the award in SHP 530 plainly would not allow.

To put it colloquially, on the basis of their respective interpretations, each party appears to be of the view that in the negotiation of the Letter of Understanding of April 29, 2002 the other side gave away the store. It appears that it was only the award of Arbitrator Albertyn in the grievance of Carman Heywood which caused the parties to realize the extent of the gap between them. The Union felt that the arbitrator could not, as he did, describe Carman Heywood as being in a safety sensitive position and therefore subject to post-accident/incident drug and alcohol testing, while the Company viewed the arbitrator’s conclusion as being consistent with its understanding of what the parties agreed to within the terms of the Letter of Understanding of April 29, 2002.

It appears to the Arbitrator that the ambit of the parties’ discussions was to a substantial degree influenced by the medical rules promulgated following the abolishment of GO 0-9. As reflected in the Canadian Railway Medical Rules Handbook, for the purposes of those rules, safety critical positions are generally recognized as those which involve running trades positions, rail traffic control and other occupations which perform duties similar to those of employees in those categories. A review of the example list of safety critical positions within the Handbook reflects work such as that of locomotive engineers, conductors, rail traffic controllers and superintendents, by way of example. The focus is on persons involved in the movement of trains and railway equipment. It is therefore not surprising that in their mutual interest, in devising a limited list of safety sensitive positions for the purposes of the Company’s Workplace Alcohol and Drug Policy, both parties naturally focused on employees within the bargaining unit of Local 100 who are variously engaged in the movement of on-track equipment and the operation of heavy duty cranes. There is every reason to understand why the parties would want incumbents in those positions to be pre-screened before undertaking the duties and responsibilities of such highly safety sensitive positions. It seems to the Arbitrator, however, that the parties were less than clear in their communications with each other, to the extent that there was no attempt on either side to differentiate and consider together how other employees, such as carmen working in live yards, for example, should be treated under the terms of the Company’s Policy on Alcohol and Drug Testing. Because of the way in which they approached their discussions about designating safety sensitive positions, it would appear that the parties truly did talk past each other, and never achieved a meeting of the minds or a common understanding.

As should be apparent from all of the foregoing comments, the Arbitrator cannot accept the interpretation of the Letter of Understanding of April 29, 2002 advanced by either of the parties. The Company cannot, in my view, fairly assert that the Union effectively agreed, without any reservation, that virtually all employees in the bargaining unit are subject to reasonable cause and post-accident/incident drug and alcohol testing, without any qualification stated. At the hearing counsel for the Company asserted that the employer would not impose drug testing upon clerical employees working in a purely non-safety sensitive environment. That, however, appears nowhere in the text of the Letter of Understanding. Most significantly, I am compelled to conclude that there was no mutual understanding. The concept of reasonable cause and post-accident/incident testing was clearly understood by the Union’s representatives to be limited to the relatively small classifications of employees described in the numbered paragraphs within the Letter of Understanding.

Conversely, in the Arbitrator’s view it would be unfair to conclude that the Union effectively extracted from the Company an agreement that drug and alcohol testing under the Company’s Policy could never apply to over 90 percent of the employees in the bargaining unit, many of whom work constantly in and around heavy industrial equipment, both in shops and in yards. In the Arbitrator’s view so radical a restriction on what would otherwise be the Company’s right emerging from SHP 530 would require clear and unequivocal language. No such language is to be found in the Letter of Understanding of April 29, 2002.

In the result, I find myself compelled to accept the alternative argument put forward by counsel for the Company. In the fashioning of the Letter of Understanding of April 29, 2002 the parties clearly operated under a fundamental mutual mistake. The Company believed that it was negotiating two separate things: the delineation of employees who would be deemed safety sensitive for the discrete purpose of pre-assignment drug and alcohol screening and, secondly, a reservation of the Company’s general right, emerging from SHP 530, to resort to reasonable cause and post-accident/incident drug and alcohol testing for all employees, in appropriate circumstances. It is clear that the Union at all times proceeded on the understanding that the only employees affected by the Letter of Understanding, including the reference to reasonable cause and post-accident/incident testing, are the employees specifically described in the numbered paragraphs appearing within the Letter, that is to say employees who might possibly be involved in the movement of track equipment, thereby excluding the vast majority of the bargaining unit’s members.

So vast a chasm in understanding between the parties, namely which employees they were dealing with in the fashioning of their Letter of Understanding, can only be characterized as a mutual mistake going to the root of the document. To put it differently, with respect to the meaning and scope of their agreement, there was no agreement at all and, in the end, no enforceable contractual instrument. In coming to that conclusion I am satisfied that it would not be appropriate to direct partial rescission and to conclude, for example, that there was proper agreement on the identification of bargaining unit employees who would be subject to pre-assignment screening. I say that because it is clear from the extrinsic evidence before me that the bargaining leverage exercised by both parties depended upon reaching agreement on all aspects of the Letter of Understanding. It is less than clear that the parties would have agreed, as they appear to have done, with respect to the designation of job classifications to be subject to pre-assignment screening had they known that they were entirely disagreed with respect to the issue of reasonable cause and post-accident/incident testing as it might apply to the vast majority of employees in the bargaining unit. In those circumstances, I do not consider that it would be appropriate to apply a principle of severance to conclude that the first part of the Letter of Understanding, concerning the list of employees who are to be subject to pre-assignment drug and alcohol screening, should be allowed to stand.

In the result, the Arbitrator finds and declares that the Letter of Understanding of April 29, 2002 is a nullity and is hereby declared rescinded by this Award. In the result, the parties are returned to the position in which they found themselves as of the date SHP 530 first issued, insofar as the issue of determining which employees within the bargaining unit can be characterized as involved in safety sensitive work or work settings so as to be subject to either pre-assignment drug and alcohol screening or to reasonable cause and post-accident/incident drug and alcohol testing. On that basis the matter is remitted to the parties.

The Arbitrator continues to retain jurisdiction both with respect to the interpretation and implementation of this Award as well as to the completion of SHP 530, should the parties ultimately be unable to agree on all aspects of which employees are subject to drug and alcohol testing.

Dated at Ottawa, Ontario this 26^th day of April, 2010.

_______________________________

Michel G. Picher

Arbitrator