Question:

1. Describe what legal obligations Bombardier management has towards members of the Bombardier bargaining unit (its employees)? What action can a unionized employee at Bombardier take if they are dissatisfied with the decisions of management? In this Bombardier case, does Bombardier management have an obligation towards its employees and their union when it comes to investigating issues such as the incident described in this arbitration case?

In the matter of an arbitration between

BOMBARDIER TRANSPORTATION

(Thunder Bay Plant)

(The Company)

and

UNIFOR and its Local 1075

(The Union) Grievance of

'CT', #2017-73 before

Paul Craven, Sole Arbitrator

A hearing was held at Thunder Bay, Ontario, on February 8 and 26, 2018.

For the Company: Kevin MacNeill, Counsel, and others

For the Union: Gary Bragnolo, Representative, and others

AWARD

I was appointed pursuant to the Labour Relations Act, 1995, s.49, to hear and determine this discharge grievance.

The grievor was one of two employees discharged for smoking marijuana at the work- place on October 5, 2017, in contravention of the Company's drugs and alcohol policy. I am not seised of the grievance of the other employee, ('CL'),which I understand is currently pending arbitration.

The Company's drugs and alcohol policy prohibits employees and others on its premises

'from being under the influence, consuming, using, possessing or trafficking drugs or alcohol . . . anywhere on the company premises.' It also provides for drug testing in certain circum- stances, including where a supervisor has reasonable grounds to believe 'that an employee is or may be unable to work in a safe manner because of the use of drugs and/or alcohol.' The policy sets out a procedure for conducting such a test. In the case before me the Union does not challenge the policy or its application to cannabinoid use. Nor does it contest the Company's authority to require the grievor to undergo a drug test in the circumstances, although it disagrees with the manner in which the Company used one of its documentation tools. There is no dispute that drug or alcohol use is a legitimate ground for discipline in a safety-sensitive industrial environment. The parties have set out in article 33.9 of the collective agreement that substance abuse is harmful to both the employee's well being and the Company's operations.

The grievor tested positive for THC, an active component of marijuana. He denies having smoked marijuana in the workplace and maintains that the positive test result is a consequence of his regular off-duty marijuana use to address various health issues. While neither party led informed evidence about the significance of the test results, both appear to accept that a positive result merely indicates the presence of THC in the system without necessarily identifying either present impairment or recent consumption.

The Union does not allege that the Company discriminated against the grievor on grounds of disability nor that it failed to accommodate his disability. The Union's entire position is that the grievor did not smoke marijuana in the workplace on October 5.

At the outset of the Company's investigation the grievor claimed to have been taking medical marijuana under the direction of a physician. He subsequently acknowledged that he had been self-medicating without a prescription. In November 2017, post-discharge, he obtained a physician's prescription for medical marijuana.

The grievor's evasions and untruths about his off-duty marijuana use complicatedand protracted the Company's investigation. They also give rise to concern about his general credibility and in particular whether he is to be believed when he denies having smoked marijuana in the workplace on October 5. This concern will be discussed later in this award. Nevertheless, the onus is on the Company to show on the balance of probabilities that the grievor smoked marijuana in the workplace on October 5. Accordingly I turn first to the Company's evidence on that point.

During their afternoon break on October 5, the grievor and CL were observed near the rectifier building which is situated close to the tracks to the northwest of the main plant. I heard the evidence of J.P. Prinsloo, the Company's security manager, that this area is known to him as a preferred site for illicit drug use. He has found various items of drug paraphenalia there over the years, in particular 'one-hitters,' small pipe-shaped objects in which he has identified residual traces of marijuana. These objects are available in the plant because they are component parts in the manufacturing process. Mr. Prinsloo testified that drug users pack them with a single 'hit' of marijuana and discard them in the area of the rectifier building after use. Due to concern that the rectifier building had become a site of illicit activity, the Company installed a surveillance camera but then unaccountably permitted a contractor to leave a trailer blocking the camera's view of the area.

On October 5 supervisor Darren Stewart left the main plant to check on employees working outside. He testified that he encountered a strong smell of marijuana and looking to the left saw two people approximately a hundred and fifty or two hundred feet away standing near the rectifier building. As he walked towards them he saw smoke coming from CL's mouth. The grievor was standing behind CL; both of them were facing south towards the plant. Mr. Stewart still smelled marijuana. As he approached, the grievor turned and looked at him. Mr. Stewart saw something hit the ground beside CL and smoulder. He searched the area without result.

Mr. Stewart directed the grievor and CL to accompany him to the Human Resources office. The grievor walked beside Mr. Stewart but CL went ahead on a bicycle and had not attended at the office when Mr. Stewart and the grievor arrived there. Mr. Stewart called Mr. Prinsloo, who proceeded to the rectifier building but did not discover anything related to the incident at issue. Mr. Stewart also arranged for CL to be located and brought to the Human Resources office.

The grievor and CL were interviewed together in the presence of their Union repre- sentatives. The Company led evidence about the meeting from Mr. Stewart, Mr. Prinsloo and Human Resources business partner Jamie Klomp. Asked in cross-examination whether they had noticed any signs of impairment, Mr. Prinsloo and Mr. Klomp said they had not.

Mr. Stewart said that the grievor's eyes appeared 'glossy'and that he seemed 'jittery' but added that many people would show signs of agitation in such a setting. Mr. Prinsloo's observations of the grievor at the drug testing site confirm that he was agitated and upset.

At the meeting, the grievor was adamant that he had not been smoking. He repeatedly asked to have the surveillance camera checked but the Company representatives declined to do so. When it became clear that he was to be sent for testing, the grievor indicated that his test would be positive because he was a regular user of medical marijuana.

When a Union representative asked whether anyone could smell marijuana in the small boardroom where the meeting was held, none of the Company officials present said they could smell it. Mr. Stewart testified that he kept silent in the presence of the grievor but that after the grievor was escorted away for testing he told the other Company officials that he had smelled marijuana in the boardroom.However he was unable to tell whether the smell emanated from the grievor or from CL. Mr. Stewart opined that he was able to detect the smell of marijuana when his colleagues did not because unlike them he was not a tobacco smoker. Mr. Klomp testified that his sense of smell was affected by a cold.

Mr. Klomp and Mr. Stewart filled out a 'reasonable cause for testing' card after sending the grievor and CL to an offsite testing facility. Despite the testimony recorded above, they checked off 'yes' against the statement:

Has some form of impairment been shown in the employee's appearance, actions or work performance? i.e. Slurred speech, unsteady on feet, yelling, fighting, etc.

They also checked off 'yes' to:

Is the impairment current, today, now while on the job or Bombardier property?

The card concludes with this warning, to which they checked off 'yes':

Do NOT proceed with reasonable cause testing unless all of the above questions are answered with a YES.

Mr. Klomp acknowledged that the card was filled out after the grievor and CL were sent to testing but said that he and Mr. Stewart had discussed each of the criteria beforehand. He was not asked to account for the discrepancy between the allegation of impairment on the card and his and others' testimony at the hearing.

In my opinion the card was not used as intended in this case, nor does it assist the Company's position. Nevertheless its use is not mandated by the policy or by any agreement with the Union. In any event, the Company drug and alcohol policy does not require impairment to be shown. It is sufficient to show consumption on Company property. It was not inconsistent with the policy for the Company to send two employees for drug testing when they were found in proximity to one another at a site where illicit drug use had long been suspected, and where a supervisor reported having smelled marijuana and seen one of them exhale smoke.

The testimony of Union officers present at the meeting did not differ materially from that of the Company officials.

The grievor testified about the events of October 5. His account differed in detail from that of Mr. Stewart. Where Mr. Stewart said the grievor and CL were standing fairly close together looking south towards the main plant, the grievor said that he was walking in a westerly direction texting on his cellphone with his back to CL, who was seated on a sandbox some distance away. The grievor disagreed with the Company evidence about the size and location of the trailer and claimed to have been able to see the surveillance camera from where he stood when Mr. Stewart arrived. There were other discrepanciesas well.

The Company's position is that the grievor's testimony about the incident is self- serving and unreliable. No doubt the grievor is an interested witness. It seems to me, however, that if his description of the incident is fabricated it is out of a wish toavoid incriminating CL. There is evidence before me that the Union called one of the investigation meetings to a halt because the officer involved believed the Company representative was attempting to intimidate the grievor in order to have him say that CL had been smoking marijuana. The Union took the position at that meeting that it was not having one member give information about another. The main discrepancies between Mr. Stewart's account of the October 5 incident and the grievor's all have to do with whether the grievor was in a position to observe what CL was doing.

The Company submitted in argument that the grievor's prior knowledge that there was a surveillance camera directed at the rectifier building meant that he knew how to hide from its view, so that his claim to have been able to see the camera and his insistence that the Company review the surveillance record are additional fabrications. Inasmuch as there is no evidence before me that the Company reviewed the surveillance product. I cannot agree with this submission. The grievor's claim would have been easy to test if the camera was working. Had its view been blocked by the trailer then the video would have contradicted the grievor's claim.

The grievor placed his own credibility in issue early in the investigation of the October 5 incident when he first claimed to have a prescription for marijuana, then came up with various excuses for not providing it, and eventually acknowledged in a text to Mr. Klomp that there was no prescription but that he had been using street drugs. The Company relies on the grievor's prevarications to undermine his credibility in general and to attack his claim not to have been smoking marijuana outside the rectifier building on October 5.

The most notable among the grievor's admittedly false claims is that he was in pos- session of a medical marijuana license at the time of the incident. Whether or not he had one is irrelevant to the question of whether he was in breach of Company policy. It is only significant for its bearing on the grievor's credibility.

The grievor testified that he had suffered an injury during his previous employment which resulted in his becoming addicted to opioids (Percocet). He subsequently entered a methadone treatmentprogram. He was taking antidepressants and other medications to treat anxiety and what he described as PTSD. He began self-dosing with marijuana in an effort to reduce his dependency on other psychoactive drugs and found that it helped to calm him and improved his ability to sleep. He said he used marijuana only at night and never at the workplace. He said that his doctor at the time knew he was using marijuana, and that in connection with the methadone program he was required to undergo drug testing twice each week.

The grievor's testimony in this regard is supported by a copy of a methadone prescrip- tion receipt in his name, albeit dated a month after the incident.A brief note from the doctor who prescribed medical marijuana in November (admitted by consent) indicates that the grievor 'is prescribed medical cannabis for a PTSD diagnosis made by Dr. Stewart in December 2015. This is also used as a harm reduction method to assist patients on opioid dependence therapy to stabilize and potentially reduce opioid requirements.'

It is apparent from the testimony of both Company and Union witnesses that the grievor was anxious, upset and at points tearful during the meeting on October 5 and at the testing facility. He became anxious and upset under cross-examination at the arbitration hearing, in particular when Company counsel asked to examine his cellphone to support the grievor's claim that he had been texting his girlfriend when Mr. Stewart arrived at the rectifier building.

The grievor was clearly anxious about the prospect of losing his job and was not consistently truthful during the investigation. Nevertheless I accept his evidence that he was a regular user of marijuana. The Company has not contested or undermined the grievor's claim to have been a regular user. On the other hand, the fact that the grievor used marijuana at night to help him sleep does not mean that he did not also use it at work on October 5.

The grievor's claims during the investigation were mendacious. His testimony at the hearing was self-serving.Mr. Stewart's eyewitness account was disinterested and restrained, notwithstanding my misgivings about the 'reasonable cause' card. In all the circumstances I have concluded that Mr. Stewart's observations are to be preferred to the grievor's where their accounts differ. For reasons set out above they are more "in accordance with the preponderance of probabilities in the case," to quote the well-known judgment of O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.).

While I have confidence in Mr. Stewart's observations this does not mean that I nec- essarily share the conclusions the Company drew from them. The core of Mr. Stewart's account is that he smelled marijuana, saw the grievor and CL together in an area known as a site for drug use, saw smoke come from CL's mouth and saw something smouldering on the ground beside CL. Mr. Stewart did not see the grievor smoking. Nor did he see the grievor and CL exchange anything. The Company theorized that the grievor and CL were 'sharing the marijuana experience,' as counselput it in argument. The failed search for a 'roach' or butt suggests otherwise. The Company's alternative theory suggested by Mr. Prinsloo is that a 'one-hitter' was used and that CL went ahead on his bicycle in order to dispose of it. While this might explain why nothing was found on the groundthe ash from the smouldering ember would have been lost among the gravelit undermines the sharing the- ory. Mr. Prinsloo's evidence about the one-hitter is that it is good for a single 'hit' as the name implies.

Although the grievor lied about having a prescription and gave a self-serving account of the incident, it does not follow that he was not telling the truth when he insisted that he had not smoked marijuana near the rectifier building on October 5. In my opinion Mr. Stewart's eye-witness accountdoes not compel the conclusion that the grievor was probably smoking marijuana. He was not seen smoking,exhaling or disposing of drugs or paraphenalia. Mr. Stewart detected the smell of marijuana smoke in the area and later in the Human Resources boardroom but was unable to say that it emanated specifically from the grievor. Mr. Stewart was the only participant in the October 5 meeting to have detected the smell and he is also the only participant to have mentioned a sign of potential impairment, 'glossy eyes,' which is equally consistent with testimony from Company and Union witnesses that the grievor cried. The grievor's anxiety and upset at the investigation meeting is consistent with fear that he would lose his job following an inevitably positive drug test and perhaps also with anger that he was being falsely accused. It is also consistent with the little we know of his medical history.

In all the circumstances, the Company has not demonstrated that it is more probable that the grievor smoked marijuana on its property on October 5 than that he did not. I might go further and say that this is one of those fortunately rare cases in which had the onus been otherwise the result might have been different.

At the end of the day, I can only conclude that the Company did not have just cause to discharge thegrievor for 'being under the influence, consuming, using, possessing or trafficking' marijuana on its premises on October 5 as alleged in its termination notice. The grievor is therefore to be reinstated in his employment without loss of seniority and is to be made whole with respect to lost earnings subject to his duty to mitigate his losses. This is my award.

I would not like to leave this matter without making the following observation. As the deadline for legalizing recreational marijuana use approaches it has become notorious that current tests for cannabinoids are incapable of demonstrating either present impairment or recent consumption. Unless and until more sophisticated tests become available, it seems to me that the parties' Substance Abuse Joint Committee (established by article 33.9(c) of the collective agreement) or other suitable forum might wellconsider other more reliable methods of assessing impairment and/or alternative policy approaches to the problem of marijuana use in the workplace.

Dated at Toronto, 8 March 2018,

Paul Craven, Arbitrator