Arbitration board upholds union position on random testing, in current form

THE DECISION

The majority of a 3-member arbitration board in Alberta has ruled a random testing standard for unionized Suncor employees in safety sensitive at its operations in the Regional Municipality of Wood Buffalo (RMWB) “in its present form” is unreasonable. In the ruling, board chair Tom Hodges says Suncor didn’t have enough evidence to prove there is a “significant” alcohol or drug problem within its bargaining unit, or a legitimate safety risk to warrant such a program.

THE DISSENT

In his dissenting opinion, board member David Laird says the majority misapplied the test articulated by the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper. In the Irving case, Canada’s top court ruled random testing could be justified in a dangerous workplace where there are enhanced safety risks, such as evidence of a “general” problem with alcohol and drugs. In this case, the majority decided that Suncor did not prove a problem existed among unionized employees. However, of the positive alcohol and drugs tests between 2003 and 2013 at Suncor’s RMWB locations, Laird says 95 percent involved the bargaining unit. Laird also argued that the Irving test requires a general problem in the “workplace” not in the “bargaining unit” and as such, Suncor is not required to distinguish between unionized employees, non-unionized employees, and contractor employees. During the lengthy arbitration hearing, the board heard additional evidence from Suncor of a general problem in the workplace:

• 149 positive post-incident tests over a 10-year period in which it could not be ruled out that alcohol and drugs were a factor

• 2,276 reported security incidents involving alcohol and drugs between 2004 and 2013

• 3 deaths related to drugs and alcohol in the past 7 years

Laird says there has been no other case decided in Canada that can parallel the compelling evidence heard by this arbitration board. In the Irving case, there were 8 alcohol-related incidents over a 15-year period and no accidents, injuries, or near misses connected to alcohol use and no positive random or reasonable cause tests in the prior 22 months. Suncor will ask the Alberta Court of Queen’s Bench for a judicial review of the arbitration board’s ruling.

IMPACTS FOR NON-UNIONIZED AND UNIONIZED WORKPLACES

This grievance arbitration decision is not expected to impact non-unionized employers (not regulated by the U.S. Department of Transportation) who currently have a random testing program in place. It is important to note that the ruling solely focused on a unionized workplace and the board’s interpretation of arbitration decisions to date, as well as the direction provided by the Supreme Court in the Irving Pulp and Paper ruling, which again was limited to a unionized workplace. In Entrop v. Imperial Oil, which was based on a human rights complaint, the Ontario Court of Appeal found random alcohol testing acceptable. In reaching its decision, the court applied the Bona Fide Occupational Requirement (BFOR) test handed down by the Supreme Court of Canada (in the B.C. Firefighters case), which stated that when determining if a policy or standard breaches human rights law, one must ask: (a) is there a sufficient “connection” between the purpose of the standard and the requirements of the job; (b) was the standard adopted by the employer in the “honest belief” that it is needed to ensure the work-related purpose; (c) is the standard actually needed to ensure the purpose; and (d) is it impossible to accommodate those who fail the standard due to a characteristic listed under human rights law without causing the employer “undue hardship” (what represents “undue hardship” is a complicated inquiry that depends on the particular circumstances of any given employer). The Canadian Human Rights Tribunal has upheld both random alcohol and drug testing for bus drivers resulting from a human rights compliant, not a grievance. And in its 2009 policy, the Canadian Human Rights Commission suggested random testing could be extended beyond the bus industry to other sectors: “If an employer other than those in commercial bus and trucking operations believes that it may be able to justify random and pre-employment testing of its employees in safety sensitive positions, these are some of the factors that may be considered by the Commission in determining whether testing is a bona fide occupational requirement.”[1] Their policy states the factors that will be considered in determining if the employer meets this test include:

• Whether employees are under direct supervision

• Whether there are less invasive alternatives to drug and alcohol testing that may help employers determine whether employees in safety-sensitive positions are impaired on the job

• Whether there is evidence of a high incidence of drug use in the workplace or industry

• Whether the employer offers a comprehensive, employer-supported rehabilitation program

• Whether the employer is required to comply with legislation or regulations, such as Occupational Health and Safety Legislation or U.S. Department of Transportation regulations.

SUMMARY

Non-unionized employers with existing random testing programs in their workplaces are not impacted by this decision. Non-unionized employers considering implementing random testing in their workplaces should consider the CHRC’s guidance and try to establish that there is a bona fide occupational requirement or justification to introduce random testing to meet human rights standards. Employers in unionized workplaces who are currently randomly testing their employees may want to determine if the union’s reasonable timeline to grieve has past, provided there is no allowance for random testing in the collective bargaining agreement. We encourage you to get in touch with us if you have any questions about the implications of this decision for unionized and non-unionized workplaces alike. We would also remind you that the information contained in this document is not intended to be taken as legal advice. DriverCheck recommends that employers consult legal counsel before determining how to proceed.

[1] Canadian Human Rights Commission. Canadian Human Rights Commission’s Policy on Alcohol and Drug Testing. Revised October 2009.