Teck Coal Limited ("Teck"), British Columbia's
largest mining company, implemented a new mandatory random drug and
alcohol testing policy in December 2012 in the province. The policy
was presented in November 2012 for union review and the union
lodged a grievance of the policy soon after.
The United Steel Workers applied to the arbitrator for an
interim order that the new policy not be implemented until the
arbitrator had made a decision on whether the policy itself was
permissible. The union took the position that the employer had not
demonstrated "the existence at the worksites of alcohol or
drug-induced safety problems". The union said that
demonstration of those existing problems was required by the
decision of the Supreme Court of Canada in Communications,
Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp
& Paper, Ltd. ("Irving Pulp"). In that
case, Canada's highest court
ruled the company's imposition of mandatory testing was a
violation of worker's rights.
In dealing with the union's application for an order staying
the implementation of the policy, the arbitrator had to balance the
irreparable harm that would result from violating the privacy
rights of the coal miners against the irreparable harm that could
result from the physical injury or death of the miners resulting
from impairment in the workplace.
In May 2013, the arbitrator decided that safety should prevail
over privacy and he refused to delay the implementation of
The union appealed the interim decision to the Labour Relations
Board ("LRB"). In February 2014, the LRB upheld the
decision of the arbitrator in Teck Coal Limited, BCLRB No. B28/2014. The LRB
noted in its decision that:
... in Irving Pulp the
majority and dissenting judgments each considered and discussed
what each perceived the correct arbitral consensus to be with
respect to random drug and alcohol testing, for the purpose of
determining whether the award at issue in that case was reasonable.
However, the arbitral consensus itself was not under judicial
review, only the award at issue. Furthermore, as noted in
Irving Pulp, "arbitrators are free to depart from
relevant arbitral consensus and march to a different tune", as
long as they provide a reasoned basis for doing so...".
The merits of the mandatory random drug and alcohol testing
policy will now be heard by the arbitrator for a final decision
about the policy. In defence of its policy, the employer will
introduce expert evidence. It seems that the experts agreed that
the workforce "was not immune from the societal prevalence of
alcohol and drug abuse", and that there was a "genuine
risk of serious accident" that could be minimized by mandatory
random drug and alcohol testing.
The employer's position is that the expert evidence it
intends to call was not presented in other arbitration and court
decisions on this issue. The employer argues that the Supreme Court
of Canada in Irving Pulp left the reasonableness of drug
testing policies to be determined on a case-by-case basis by
As a result of the LRB's decision, the arbitrator's
consideration of new expert evidence may well result in an
important precedent for the implementation of mandatory random drug
and alcohol testing in safety-sensitive workplaces.
We will report to you further on this case as it progresses.
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