Canadian Railroads > EHH and the arbitrator "War of Words"

As I suspected from the amount of attention the issue of the reinstatement of a CP locomotive engineer following a positive drug test for cocaine, and the outrage of CP CEO Hunter Harrison over the affair has much more to it than a simple court challenge of the arbitrators decision.

CP is challenging the arbitrator's judgement in multiple substance abuse arbitrations. Basically, a series of decisions where the appellant was re-instated are being sent to the Quebec Superior Court for re-examination.

From time to time over the decades that the Canadian Railway Office of Arbitration has been in place, the railways and the unions which fund the CROA have questioned the impartiality of their chosen arbitrator. Sometimes just the suggestion that the arbitrator has lost the trust of the funding partners has been enough for him to give up the position.

This most recent challenge is a fairly blatant case of "Choose a friendly judge" by EHH.

Don't care for EHH but, I have to side with him on this issue.

If I had to wager on this one I'd have to bet that at the end of the day EHH will come out the winner, as with Canada's prohibition against random drug testing even of transportation workers in highly safety sensitive positions it will make the courts tend to err on the side of an abundance of caution.

IMHO-Ross Rowland

I spotted a Montreal Gazette article on OKthePK that goes a bit more into depth on the issue ... there has been more than one incident.

http://www.montrealgazette.com/news/Cocaine+train+engineers+seen+disability/10066974/story.html

At issue is the assumption that cocaine addiction is an "illness" rather than being seen as "using illegal drugs." How that comes about is way beyond my old brain cells to figure out!!

Will MacKenzie
Dundas, ON

An index of all the Canadian Railway Arbitration awards can be found at

http://croa.com/LINKPDF.html

The award which got EHH all worked up was

http://croa.com/PDFAWARDS/CR4328.pdf

I browsed the recent awards - since about April of this year - and picked out some other awards (listed below) which give a broader view into how the system views termination of an employee, especially for substance abuse on or off the job.

The key points that I would make from a read of these would be -
- The CROA Arbitrators do uphold the termination of an employee, IF their actions go beyond a certain line
- The line is fairly clear, and reflects both the arbitrators's thinking in past cases, and the broader findings of arbitrators in other industries and the legal decisions of Canadian courts
- The most recent award is very likely consistent with this body of past decisions
- This line is likely not where EHH would want it drawn

So the question really boils down to ....who makes Canada's labour law? A CEO who lives in the United States, or the Canadian courts ?

If EHH feels that he is qualified to tell Canadians what the law should be, he should a) apply for Canadian citizenship and then b) run for office.

Failing that, he should suck it up and follow the law just like the rest of us, (who may or may not agree with every bit of it).

FWIW other Canadian industries with similar public safety risks have been grappling with the same issue. In my industry, even the management lawyers are convinced that the Supreme Court would uphold the existing arbitral viewpoint. Time will tell if EHH is smarter than everyone else, or just foolish for peeing into the wind.

- Paul

Some interesting awards:


http://croa.com/PDFAWARDS/CR4291.pdf

http://croa.com/PDFAWARDS/CR4296.pdf

http://croa.com/PDFAWARDS/CR4298.pdf

http://croa.com/PDFAWARDS/CR4299.pdf

http://croa.com/PDFAWARDS/CR4305.pdf

http://croa.com/PDFAWARDS/CR4310.pdf

http://croa.com/PDFAWARDS/CR4311.pdf

http://croa.com/PDFAWARDS/CR4313.pdf

http://croa.com/PDFAWARDS/CR4314.pdf

http://croa.com/PDFAWARDS/CR4329.pdf

http://arbitrations.tk/croa/45/CR4064S.htm

Perhaps I'm in the minority on this but I can testify that in the states random testing has most definitely rooted out nearly 100% of those in the operating trades who have had a drug or alcohol abuse problem. I can also testify that the only ones I've ever witnessed who had major objections to being tested were folks who had an issue they hadn't addressed.

I sure would like to believe that the engineer/pilot of the train/plane I'm about to board is clean&sober and random testing increases the odds that that will be the case.

My guess is that someday Canada will change its policy,....... but let's hope it doesn't take a major tragedy to bring about that change???

Ross Rowland

War of Words this all may well be however i agree with Ross Rowland on this topic. Far too many people mostly the younger crowd uses non-prescribed mind-changing drugs with abandon. All too often when driving come along aside an automobile and the smell of fresh pot wafting from the windows makes me look around for a pile of burning leaves. Mind so does any form of tobacco smoke. If the lawmakers can be so effective banning the smoking of tobacco in many areas (unlike in the United States, Mr Rowland take note) maybe they can do the same for substance abuse elsewhere. If all of those who were involved in the transportation industry were banned and tested for substance abuse including tobacco perhaps we all feel somewhat safer , perhaps.

Bryce lee

Thumper Wrote:
-------------------------------------------------------
If the lawmakers can be so effective
> banning the smoking of tobacco in many areas
> (unlike in the United States,



Big fella, no idea where you get your info on the USA, but the location of where a person is permitted to smoke tobacco products is sharply restricted in my state (Ohio) and many others. No smoking inside a commercial building....no smoking within 10 yards of a door, either.

Plenty of other states have restrictions of some sort, including some as severe as ours.

http://en.wikipedia.org/wiki/List_of_smoking_bans_in_the_United_States

Privacy of your own home or vehicle? Light 'em up!

BobE

Where I worked (I am now retired)everyone in the company from CEO and down were subject to random drug tests. I remember one year our facility manager got selected 3 times for a random drug test. Our yard and shuttle drivers with Class A driver licenses were also subject to DOT random drug tests. I can only speak for my self but it did deter me from using drugs. The company did have good programs to help those with alcohol or drug problems. Now that I am retired maybe move to Colorado or Washington?

eDot should stick to inflating RR stocks as he's sorely lacking in legal expertise;)

"If all of those who were involved in the transportation industry were banned and tested for substance abuse including tobacco perhaps we all feel somewhat safer , perhaps."

INCLUDING TOBACCO......really, its still a completely legal product in both Canada and the states.

Guess this guy would be in big trouble in today's world....

---

Yes he probably would if the company had a no smoking rule for on the job. I fail to see where EHH lives or has his citizenship has much to do with how he runs CP. But he is the boss and like all of us his current actions probably come into play based on what he did on other railroads.
Face it..he could walk on water and some would see it as evil. IMHO
Roger Beckett



Edited 1 time(s). Last edit at 07/28/14 19:03 by up833.

BobE Wrote:
-------------------------------------------------------
> Thumper Wrote:
> --------------------------------------------------
> -----
> If the lawmakers can be so effective
> > banning the smoking of tobacco in many areas
> > (unlike in the United States,
>
> Big fella, no idea where you get your info on the
> USA, but the location of where a person is
> permitted to smoke tobacco products is sharply
> restricted in my state (Ohio) and many others. No
> smoking inside a commercial building....no smoking
> within 10 yards of a door, either.
>
> Plenty of other states have restrictions of some
> sort, including some as severe as ours.
>
> Privacy of your own home or vehicle? Light 'em
> up!
>
> BobE

And on the same idea, how available are tobacco products?
Still sold retail in pharmacies and variety stores?
In most places where sold retail, covered and
not on visible display?
Keep in mind too ten yards from a door is not a great distance.

Bottom line one wonders if non-tobacco products often consider
themselves outside of the laws of prohibition? Just my thoughts.

Bryce Lee

Thumper Wrote:

> Bottom line - one wonders if [the users of] non-tobacco products
> often consider themselves outside of the laws of prohibition?

You wouldn't be referring to the mayor of Canada's largest city, would you?

Ray

Thumper Wrote:
-------------------------------------------------------

> And on the same idea, how available are tobacco
> products?


If I were a smoker, I would be able to obtain them.




> Still sold retail in pharmacies


No. http://info.cvscaremark.com/cvs-insights/cvs-quits The two largest pharmacies stopped.



and variety stores?


Almost certainly.



> In most places where sold retail, covered and
> not on visible display?



Correct. These have been products that require a counter clerk to pull them from inventory in most places for decades. Heck, I worked in a couple of gas stations as a teenager and convenience stores in my early 20s and cigs were things that had to be asked for because they were not within reach of the customer.


> Keep in mind too ten yards from a door is not a
> great distance.
>



It's far enough that the smoke generally isn't sucked into the building.

It does, however, lead to clusters of people puffing away in the same, designated spots. They want to kill themselves with the stuff, that's fine, and they can be avoided for those who don't want to join them in the oncology ward.



> Bottom line one wonders if non-tobacco products
> often consider
> themselves outside of the laws of prohibition?


We have states now that allow legal sale of wacky-tobacky products, so it's outside the laws of prohibition by law.

BobE

BobE Wrote:
-------------------------------------------------------
> Thumper Wrote:
> --------------------------------------------------
>
> > Still sold retail in pharmacies
>
>
> No. The two largest pharmacies stopped.
>

It is illegal to sell cigarettes in pharmacies in Ontario.

As for the general discussion above ...

I don't usually agree with Mr Rowland on many issues, but on this one, I do.
The problem that we have in Canada can be traced back a few years to a former prime minister who insisted on bringing in "laws" that gave criminals and law-breakers more rights than their victims or the general population for that matter. Yes, I am talking about the man I personally consider to be one of the worst prime ministers in Canadian history ... Pierre Trudeau.
At the same time, we have also come up with a system that coddles drug and alcohol abusers ... saying they are ill and their rights must be protected. NO NO NO ... they choose to use drugs. It is the same sort of thing where the person who has a gambling problem is "excused" from facing the law after stealing millions of dollars from their employer because they have an "illness." BullCrap!
At some point, we, as a society, must demand that individuals take full responsibility for their actions!

Will MacKenzie
Dundas, ON

As a Conductor my self. I wouldn't want to work with the guy. Hes got a history of abusing something I can't smell on him. Most railroads have a rule the conductor or engineer is required to report a crew member who is no fit for duty due to drugs n alcohol. I would not want to be riding on the locomotive or protecting a shove move or even meeting a train in the siding knowing the person running has a history of abusing any kind of drug especially since he came to work before with it in his system and wont think twice about doing it again. I say decertify him and run him off the railroad. He can go get a job that's not safety sensitive.

Posted from Android

Just after random drug tests were mandated for operating employees in the US, the NTSB published an account of the percentage of employees in safety sensitive positions who tested positive for drugs.

The percentage was much lower than perceived by both management and the workforce. By and large, North America has a clean and sober workforce operating the railways. Something like 97% of those tested were negative.

For some time as a union officer, I carried the findings of the NTSB investigation around with me to show to my co-workers.
They didn't believe it. They said, "This is Canada, we must be completely different". I told them I doubted there was much difference statistically.

Sometime later, I attended a course on Canadian Labour Law. A very high ranking Federal Government official was an instructor for a part of the course dealing with wrongdoing in both management and the workplace. Before teaching his portion of the course, he asked the participants to guage percentage of people in the workplace who would willfully break rules and/or the law given the opportunity. In our group of workers from a wide variety of workplaces, including first responders, we guessed workers were 65 to 70% honest. Another question related to socio-economic factors and ethnic diversity. The percentage of perceived trustworthiness was higher.

The real figures were 93% of the whole Canadian work force were honest and trustworthy, and in certain circumstances, the figure rose to 97%. The test here was 1. Theft from the workplace from a co-worker 98% reliable 2. false wage claim 93% reliable.

There were small variations between urban and rural workers, likewise between ethnic groups, but these were not considered significant.

My reason for bringing up these facts is that the level of drug use and wrongdoing in the workplace is actually much less than perceived by the the stakeholders in the workplace.

EHH has been "clamping down" on a problem that probably doesn't exist to the degree he believes it does. Putting it another way, he simply doesn't trust railroaders to do their work properly.

NSDTK Wrote:
-------------------------------------------------------
> As a Conductor my self. I wouldn't want to work
> with the guy. Hes got a history of abusing
> something I can't smell on him. Most railroads
> have a rule the conductor or engineer is required
> to report a crew member who is no fit for duty due
> to drugs n alcohol. I would not want to be riding
> on the locomotive or protecting a shove move or
> even meeting a train in the siding knowing the
> person running has a history of abusing any kind
> of drug especially since he came to work before
> with it in his system and wont think twice about
> doing it again. I say decertify him and run him
> off the railroad. He can go get a job that's not
> safety sensitive.
>
> Posted from Android

In a nutshell, that's the problem with treating drug abuse, alcohol abuse, etc as a disease. There's no way for coworkers etc who put their life in the guy's hands, to know he's still clean.

Even if the law says he's clean, sober, cured, OK etc it's your life that he controls.

Over the years, my experience is "wage theft" is often understood by employees as evening out time spent at home doing company work, traveling off the clock on your own time, and all kinds of other impositions. Very few people are able to leave all their work, at work. Whether it's the company screwing with your sleep clock, or making you travel on company business on your own time, etc.