CANADIAN RAILWAY OFFICE OF ARBITRATION & DISPUTE RESOLUTION
CASE NO. 4706
Heard in Calgary, November 12, 2019
CANADIAN PACIFIC RAILWAY
TEAMSTERS CANADA RAIL CONFERENCE
MAINTENANCE OF WAY EMPLOYEES DIVISION
Claim on behalf of P. Obenauer.
THE UNION’S EXPARTE STATEMENT OF ISSUE:
The issue giving rise to this dispute involves bargaining unit employee Patrick Obenauer who was issued two Form 104s on April 8, 2019. The first advised him that he was assessed a 20-day deferred suspension for a rule violation allegedly committed at Maple Meadows on February 10, 2019 while working with Utility 7. The second advised him that he was being dismissed from Company service because of the “the post incident accident non-negative substance test results that you supplied to the company on February 10, 2019 at Dr. Kenefick’s office in Surrey BC after an incident that occurred while working with Utility 7,” an alleged violation of CROR Rule G. A grievance was filed.
Mr. Obenauer did not receive a fair, impartial or complete investigation; Mr. Obenauer’s dismissal was unwarranted, improper and in violation of sections 15.1 and 15.2 of the Collective Agreement.
Mr. Obenauer was assessed a 20-day deferred suspension for a violation of a rule that he has not yet been qualified in.
Mr. Obenauer was dismissed for a violation of Rule G that was not supported by the evidence and the company failed to complete the investigation into this alleged violation therefor rendering the investigation as unfair and partial.
The Company policy regarding “the possible effects of drugs, medication or mood-altering agents…” is fatally flawed because it is based upon the assumption that a failed urinalysis test is, by itself, evidence of impairment while at work. It is not, and a wealth of jurisprudence stands for the proposition that, in the absence of impairment, no discipline can be assessed.
The company failed to meet the burden of proof necessary to show that Mr. Obenauer was impaired while on duty. Therefore, in these circumstances, no discipline may be assessed.
The company violated the wage agreement by not responding to this grievance as prescribed in article 15.7 of wage agreement 41.
The Union requests that, The Company be ordered to reinstate Mr. Obenauer into company service immediately without loss of seniority and with full compensation for all wages and benefits lost as a result of this matter.
The Company denies the Union’s contentions and declines the Union’s requests.