Reference no: EM133292656

Grievance and Arbitration

Northern Timber Company operates lumber cutting sites in remote areas of the province. Employees are flown in for 14 work days and then flown out for 14 days off. They live on site in trailers provided by the company. They are covered by a collective agreement between the company and the Timber Workers Union.

The company hired Hank Bradford as a timber cutter in 2012. In the course of his work, Bradford operates a chain saw and other hazardous equipment. Prior to being hired, Bradford was advised that no drugs or alcohol were permitted on company property, including the residences occupied by employees. The company adopted this "zero tolerance" policy after it was determined that an employee who had been fatally injured on the job had been consuming alcohol the night before an accident. In June 2017, there was an incident in which a timber cutter was severely injured. A subsequent investigation determined that the employee had been smoking marijuana in his trailer prior to the accident.

The company and the union issued a joint announcement to employees as follows:

The company and union are committed to the safety of employees. Individuals who have been drinking alcohol or using drugs are a risk to themselves and others. Employees must be alert and safety conscious. There have been incidents in which employees have been found to be in possession of drugs and/or alcohol on company property. It has been determined that some employees are using drugs including marijuana on company property. The company and the union are concerned about the use and possession of drugs and alcohol. This is a reminder that drugs and alcohol are not permitted on company property at any time. This includes an employee's residence. The company's policy is that the use or possession of drugs or alcohol on company property is cause for immediate dismissal.

Northern Timber provided a copy of the announcement to each employee and required employees to sign an acknowledgement that they had received the statement. Bradford signed an acknowledgement that he had received and read the statement. On August 10, a security guard thought he smelled marijuana in the area of Bradford's trailer. The security guard reported this to the health and safety officer, and together they investigated. When they knocked on Bradford's door and he opened it, the smell of marijuana emanated from Bradford's trailer. Bradford allowed the security guard and health and safety officer to search his trailer. They found a pipe, two grams of marijuana, and three company hand tools.

The next day Bradford was called to a meeting with the site manager, Bradford's supervisor, and the health and safety officer. At the meeting, Bradford admitted that the marijuana found in his residence was his and he had been smoking it the previous evening. The health and safety officer asked Bradford how often he smoked marijuana. Bradford stated that he had been smoking marijuana for over 10 years and in fact he smoked two or three joints every day, including one in the morning before he went to work. The management representatives reminded Bradford about the company's employee assistance plan (EAP) that was available to employees. The site manager also suggested that Bradford had been stealing company tools to pay for marijuana. Bradford denied that he had stolen any company property and stated that he sometimes brought tools back to his residence at the end of the work day instead of returning them to a tool crib. When Bradford was reminded that company policy required all tools to be returned at the end of each work day, he did not reply. Bradford did not have any union representation at this meeting,

After Bradford left the meeting, the management team reviewed the situation. Despite the fact that Bradford had not been involved in any previous misconduct or health and safety violations during his tenure with Northern Timber, a decision was made to terminate his employment. The Timber Workers Union Local 317 filed a grievance upon learning of management's decision regarding Bradford's discipline.

The chief steward, Jeff Delaney, met with the company's HR manager, Chuck Lowenstein, and both agreed to expedite the grievance-arbitration process in this instance.

Within a week of Bradford's termination, he had sought counselling through the EAP service and was referred to a support group by his family doctor. The union's grievance claimed that the company had failed to provide Bradford with due process in the handling of this disciplinary meeting. The grievance also stated that the imposed penalty for this infraction was too severe in light of Bradford's length of service and discipline-free work record since 2012. Finally, the union argued that the "zero-tolerance" policy regarding the use of alcohol or drugs had overstepped the management rights clause in the collective agreement.

For all these reasons, the remedy sought by Local 317 was Bradford's immediate reinstatement to his job with full restitution for lost wages, benefits and service credits to the date of his termination. Despite assurances from Delaney to Lowenstein that this employee had also abstained from marijuana use for the previous 10 days, the company remained firm following the Step 3 grievance meeting. In its follow-up to the Step 3 meeting, the company stated that because Bradford had violated the zero-tolerance policy regarding the use of alcohol or drugs on company property and the risk of any such violation to health and safety considerations, the termination would stand.

Question 1. As the HR manager responsible for this file. Prepare a notice of termination that would be provided to Bradford at the meeting.

Question 2. As the HR manager, what steps should have been taken in the investigation of the incident involving Bradford and what additional actions should management have taken in preparing for a meeting between company representatives and Mr. Bradford.

Question 3. Assume that you are the chief steward, who has just received notice that Bradford has been terminated. Outline how you would proceed in light of management's disciplinary action against Bradford.

Question 4. What arguments would representatives from both Northern Timber and Timber Workers Union make at the rights arbitration hearing?

Question 5. Assume that you are the arbitrator in this situation. Outline your decision, providing reasons.