IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS UNION OF CANADA
CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
(UNITED TRANSPORTATION UNION)
RE: THE COMPANY’S DRUG AND ALCOHOL POLICY
Arbitrator: Michel G. Picher
Appearing for the Company:
J. Coleman Counsel
R. MacDougall Counsel
M. Healey System Director – Support Services
R. Bateman Manager Labour Relations
M. D’Amico Assistant Chief Mechanical Officer
B. Pullen Manager Car Maintenance and Regulatory Affairs
B. Butler Consultant
T. Buskard Consultant
D. Fisher Director Labour Relations
D. Coughlin Director Labour Relations
D. Watts System Co-ordinator, Regulatory Affairs
J. Pasteris Manager Labour Relations
J. Watt HR Business Partner – HQ Operations
Appearing for the Union:
L. N. Gottheil Counsel
C. Gilbert Counsel
J. Moore-Gough President, CAW Local 100
Appearing for the Intervener:
M. A. Church Counsel
W. G. Scarrow Vice-President, UTU
R. J. Long General Chairperson, CN (Central Region) Yard,
G. Binsfeld Vice General Chairperson, CN (Central Region)
Hearings in this matter were held in Montreal and Toronto on April 21, May 20, 21, 22, July 8, 9, 10, September 1 and 2, 1998, and on January 11, 29, February 17, 18, April 12, May 18, 28, 31, June 1, September 13, 23 and October 28 and 29, 1999.
i n d e x
(NOTE – THESE PAGE NUMBERS REFER TO PAGES IN THE ORIGINAL DOCUMENT AND MAY NOT ACCURATELY REFLECT THE PAGE NUMBERS IN THE CURRENT DOCUMENT)
I The Plan 1
II Jurisprudence cited by the C.A.W. 14
III Submissions of the C.A.W. 24
IV Submissions of CN 52
V Submissions of the U.T.U. 85
VI Reply submissions (all parties) 91
VII Decision 104
VIII Conclusion 149
(NOTE – THESE PAGE NUMBERS REFER TO PAGES IN THE ORIGINAL DOCUMENT AND MAY NOT ACCURATELY REFLECT THE PAGE NUMBERS IN THE CURRENT DOCUMENT)
On January 28, 1997 the Company introduced a comprehensive "Policy to Prevent Workplace Alcohol and Drug Problems", to apply to all officers, managers and employees. The Union grieves the policy, alleging that its requirements, which include drug and alcohol testing, violate its collective agreements as well as the Canadian Human Rights Act, R.S.C. 1985 c. H-6. The Intervener, which participated in the hearing, following an invitation to do so extended by the Company to all unions representing its employees, takes the same general position as regards its own collective agreements and the Canadian Human Rights Act. The Company maintains that its policy conforms in all respects with the collective agreements and the Act.
The Company’s Policy to Prevent Workplace Alcohol and Drug Problems is extensively described in a booklet entitled "Prevention, Our Safe Choice" provided to all managers and employees of the Company. Its contents are briefly summarized as follows at p. 9:
For many years CN has had a variety of programs and practices pertaining to alcohol and drug use. This policy is intended to consolidate these programs and provide a comprehensive approach across all CN’s workforce. It clearly defines who is covered, and the standards and consequences of violation.
This policy –
The scope and content of the policy are summarized at paragraphs 2.1 and 2.2 at pp. 13-14, in the following terms:
This policy applies to all employees of CN and its subsidiaries who are based in Canada. Those employees in risk-sensitive and specified management positions will be held to a higher standard and will be subject to more serious consequences due to the direct impact that these positions have on safety, or the financial health and reputation of the Company.
In addition, Canadian-based employees who operate into the United States are subject to the rules and regulations governing cross-border operations. U.S.-based employees of CN’s subsidiaries are subject to the rules and regulations of that jurisdiction. Because company concern for safety extends to the operations of contractors and tenants, they will be expected to adhere to these standards, in whole or in part, as a condition of contract or lease.
2.2 Policy Statement
All employees are required to report and remain fit for duty, free of the negative effects of alcohol and other drugs. It is prohibited to be on duty or to be in control of a CN vehicle or equipment while under the influence of alcohol or other drugs, including the after-effects of such use. Specifically, the use, possession, presence in the body, distribution or sale of illegal drugs while on duty (including during breaks), on or off company premises, on company business, or on company premises including vehicles and equipment, is prohibited. Possession, distribution or sale of beverage alcohol, and the consumption of any form of alcohol, is prohibited while on duty (including during breaks), on or off company premises, on company business, or on company premises including vehicles or equipment.
Employees are expected to use over-the-counter or prescription medications responsibly. Any employee in a risk-sensitive or specified management position, or who is in the control of a CN vehicle or equipment is responsible for investigating whether the medication will affect safe operations, reporting any concerns to CN’s designated medical provider, and abiding by their recommendations to ensure safety.
The components of the policy concerning drug and alcohol testing, and searches, are related at paragraphs 2.4.3 and 2.4.4, at pp. 15-16, which provide as follows:
Alcohol and/or drug testing will be conducted as follows:
All employees are subject to testing under the following circumstances:
As a requirement for continuing employment as part of a relapse prevention program after treatment for an alcohol or drug problem, including where the Rule G By-Pass Agreement is applicable.
As a requirement for continuing employment as part of a monitoring program after a policy violation.
Where reasonable cause exists to suspect alcohol or drug use or possession in violation of this policy, including after an accident or incident.
Risk-Sensitive/Specified Management Positions
In addition to the above, all individuals seeking assignment to a risk-sensitive or specified management position must pass a drug test as a final condition of offer. (Note: This requirement does not apply to incumbents in a risk-sensitive or specified management position.) In any case where an individual is to transfer into one of these positions, pre-assignment testing will not be required if a negative test result has occurred within the preceding twelve month period. However, incumbents may be required to pass a drug test as a prior condition of return to duty after a leave of six months or more.
CN reserves the right to conduct unannounced searches for alcohol or drugs where there are reasonable grounds to believe they are present on premises, vehicles and equipment owned, leased or otherwise controlled by CN.
The disciplinary consequences for violations of the policy are clearly stated in paragraph 3, at p. 16:
Violations of this policy by any employee in a risk-sensitive or specified management position will result in dismissal. Violation by an employee in any other position will result in corrective action up to and including dismissal. Violation by contractors or tenants will be considered a breach of their contract or lease. Refusal to complete the testing process set out under this policy is considered a policy violation.
The balance of the booklet, which totals some 72 pages, is a statement of guidelines "… developed for the purpose of clarifying and implementing Canadian National’s (CN) Policy to Prevent Workplace Alcohol and Drug Problems in support of a safe worksite at CN", along with a set of fourteen questions and answers to further clarify the policy. At pp. 20-21 the policy establishes standards in respect of illegal drugs, alcohol and medications. Those provisions read as follows:
i) Illegal Drugs
The use, possession, presence in the body, distribution or sale of illegal drugs is prohibited while on duty (including during breaks), on company business, or on company premises, including vehicles and equipment.
Possession, distribution or sale of beverage alcohol, and the use of any form of alcohol, is prohibited while on duty (including during breaks on or off CN property), on company business, or on company premises, including vehicles and equipment. Limited exceptions to this restriction will be allowed with prior approval of a Vice-President. This does not limit retail outlets and licensed business establishments from carrying out their normal operations.
Presence in the body of alcohol above the established cut-off level, when on duty or on company business or premises, is also prohibited for all employees. In any situation where an employee is to be tested with reasonable cause including after an accident or incident, they are prohibited from using alcohol within eight hours of the accident or incident, or until tested or advised a test will not be necessary.
All employees are required to use medications, both prescribed and over-the-counter, responsibly. The possession of prescribed medications without a legally obtained prescription, and the distribution, offering or sale of prescription medications is prohibited. The intentional misuse of medications (e.g. using the medication not as it has been prescribed, using someone else’s prescription medication, combining medication and/or alcohol use against direction) is prohibited while on duty (including breaks), on company business, or on company premises, including vehicles and equipment. Medications of concern are those that inhibit or may inhibit an employee’s ability to perform their job safely and productively. (See Appendix – Medication Guidelines)
All employees are expected to manage potential impairment during working hours due to the legitimate use of medications by contacting their personal physician, pharmacist or designated medical provider, to determine if the medication or combination of medications can have a negative impact on performance, and to take appropriate steps to manage any associated risk.
All employees holding a risk-sensitive or specified management position, and employees in control of a CN vehicle or equipment, are expected to investigate whether the medication will affect safe operations and report any concerns to CN’s designated medical provider (Medcan). A Medcan physician will assess the situation to determine whether the employee can safely perform regular duties. Where it is determined that continued use of the medication will affect the individual’s ability to operate safely, employees are required to adhere to any recommendations including modified work if required and available in order to eliminate safety risks.
Medcan is a private medical services provider retained by the Company for the administration of the policy, including the administration of drug tests.
At pp. 23-25 a number of definitions appear, including the following:
is any substance (alcohol, illegal drugs, over-the-counter or prescribed medications) the use of which has the potential to change or adversely affect the way a person thinks, feels or acts. For the purposes of this policy, drugs of concern are those that may inhibit an employee’s ability to perform their job safely and meet performance expectations.
An illegal drug is any drug or substance which is not legally obtainable and of which the use, sale, possession, purchase or transfer is restricted or prohibited by law (e.g. street drugs such as marijuana and cocaine).
Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol.
Beverage alcohol refers to wine, beer, distilled spirits and similar products.
means the company’s regular, part-time, and seasonal employees on the CN payroll, including students and temporary employees.
viii) Fitness for Work/Duty
means being able to safely perform assigned duties at a level which meets performance expectations without any limitations due to the use or after-effects of alcohol, illegal drugs or medications.
means Medical Review Officer
x) On Duty
For employees covered by the Rule G By-Pass Agreement, the definition of "on duty" will be as per that agreement. Other employees will be considered on duty when they have reported for duty and are being compensated. Any employee being compensated for being on call will be considered to be on duty.
xi) Risk-Sensitive Positions
Risk-sensitive positions are those which the company determines have a key and direct role in the operation where impaired performance could result in a significant incident affecting the health and safety of employees, customers, customer’s employees, the public, property or the environment. This includes all employees who are required to rotate through or regularly relieve in risk-sensitive positions.
Supervisors and managers who directly supervise the working level positions, or who may perform the same duties or exercise the same responsibilities as risk-sensitive positions are deemed to hold risk-sensitive positions.
xii) Specified Management Positions
are those which the company determines have significant ongoing responsibilities for decisions or actions likely to affect the safe operations, finances or reputation of the company, but do not have the same direct impact on immediate physical loss as the risk-sensitive positions.
means the individual in authority over a particular area or shift, including team leaders, managers and others in positions of authority.
In addition, the concept of risk-sensitive positions is defined at p. 26 as follows:
Risk-sensitive positions are those which the Company determines have key and direct role in an operation where impaired performance could result in a significant incident affecting the health and safety of employees, customers, customer’s employees, the public, property or the environment. This includes all employees who are required to rotate through or regularly relieve in risk-sensitive positions. Supervisors and managers who directly supervise the working level positions, or who may perform the same duties or exercise the same responsibilities are risk-sensitive positions.
A list of specific occupations which are deemed "risk-sensitive" in the Transportation, Mechanical, Engineering, Intermodal, and Supply Management Departments, as well as other specified departments and the subsidiary Canac, are listed at pp. 27-30. Specified management positions, some 24 in number, are similarly identified at p. 31.
The policy places certain responsibilities on both employees and managers. Among the responsibilities of employees listed at pp. 32-33 are the following:
Every employee has the right to expect a safe and healthy workplace. Therefore, every employee is required to report and remain fit for duty free of the negative effects of alcohol and drug use, and to comply with the standards set out under this policy. Employees are required to:
The disciplinary consequences of violations of the policy are specified at pp. 38-39 of the booklet, in the following terms:
Consequences of a Policy Violation
i) General Provisions
If any employee violates the provisions of this policy or does not meet the company’s satisfactory standards of work performance as a result of alcohol or other drug use, appropriate corrective action will be taken.
In all situations, an investigation will be conducted and documented (in accordance with collective agreements, if applicable) to verify that a policy violation has occurred before corrective action is taken. Therefore, the supervisor has the authority and discretion to remove from assignment any employee whom the supervisor believes to be involved in an incident that could lead to disciplinary action pending the results of the investigation.
ii) Policy Violations
The appropriate corrective action in all cases depends on the nature of the violation and the circumstances surrounding the situation. The severity of the violation will warrant entering the corrective action process at different levels.
Some violations are considered sufficiently serious that dismissal is warranted on a first occurrence. Examples include, but are not limited to, trafficking in or possession of illegal drugs or consumption of beverage alcohol or illegal drugs on company premises, while on company business or when driving a company vehicle or equipment.
Any confirmed violation of this policy by individuals holding risk-sensitive or specified management positions will result in dismissal from employment. Any confirmed violation of this policy by other employees, unless there are grounds for dismissal as noted above, will result in progressive corrective action, with increasing severity depending on the seriousness of the violation.
b. Positive Test Results
For individuals in risk-sensitive or specified management positions a verified positive test result, or refusal to complete the testing process set out under this policy, will result in immediate dismissal whether or not the alcohol or drugs were actually consumed on company business or premises, or when on duty.
For all other employees, a verified positive test result will lead to corrective action up to and including dismissal.
Depending on the circumstances, employees (including those covered by the By-Pass Agreement) may be permitted to continue their employment with the company. Such employees will be advised of the conditions governing their continued employment which will include at a minimum, the following:
Where in the opinion of a qualified substance abuse professional there is a risk that an employee could not do their job safely, the individual may be assigned to alternate duties if available and appropriate.
c. Failure to Submit to a Test
For all employees, failure to report for a test within the designated time frame, refusal to submit to a test, or any attempt to tamper with a test sample is considered a policy violation.
Failure to submit to a test demand made by a peace officer may result in criminal prosecution.
iii) Off-Duty Activities
In addition to the above, CN will investigate any situation where off-the-job actions involving alcohol or drugs (e.g. impaired driving convictions, conviction for trafficking, bootlegging, etc.) may have implications for the workplace and will take appropriate action under the circumstances.
The policy provides for drug testing in five circumstances:
Under the policy alcohol testing is by calibrated breathalyzer, save that urine-alcohol testing may be resorted to where breathalyzer tests cannot be administered in a timely fashion. Where there is the likelihood of a criminal code violation, an investigation is to be conducted by CN Police who are responsible for arranging alcohol testing. Drug testing in such a circumstance is to be arranged by Medcan. Drug testing is performed in a fully accredited laboratory, through Medcan, using the two step process of primary immuno-assay screening, with secondary confirmation by gas chromatography/mass spectronamy (GC/MS). The policy provides that confirmed positive results are to be reviewed by a qualified medical review officer, with the employee involved being given an opportunity to explain the positive result before it is communicated to company management.
Under the policy a positive alcohol test is measured at .04 BAC (blood alcohol concentration) for employees generally. In the case of a risk-sensitive or specified management person, the cut-off level is .02 BAC. The same standard is to apply to all employees subject to random or unannounced testing upon a return to duty following treatment, or return to duty after a positive test result. For drugs, a positive drug test is described as follows at p. 47:
A positive drug test is one in which the amount of drug in the sample identified by the confirmation test exceeds the cut-off levels established by the Standards Council of Canada and the U.S. Department of Health and Human Services. All positive results reported by the laboratory will be reviewed by the company’s Medical Review Officer, who will ask the employee to determine if there is a legitimate medical reason for the finding. Only those results that are verified as positive by the MRO will be reported to the company as being positive. Company management will then take appropriate action in accordance with the policy.
The policy allows an employee who tests positive to request a re-test by another accredited laboratory within seventy-two hours of being notified of his or her positive test, at the employee’s expense. Reasonable cause testing is to be performed within thirty-two hours of the decision to take a test for drugs, and within two hours, and no later than eight hours, of an event giving rise to an alcohol test.
In the case of an employee who has tested positive for drugs, returns to work following treatment for an alcohol or drug problem or has been reinstated following dismissal for a violation of General Rule G or a violation of the policy, the employee "may be requested" to sign a contract for continued employment which includes conditions said to be fashioned to achieve "relapse prevention". A sample contract, found at pp. 48-49 reads as follows:
For a minimum period of two years and up to five years, as determined by CN’s occupational health service (Medcan), I agree while in the employ of CN to abide by the following:
The policy states that contracts of this type may vary in their terms, presumably depending on the circumstances of the specific case. The policy does provide, however, for the mandatory application of continuing employment contracts for employees reinstated, provided they have a minimum of two years’ compensated service prior to their dismissal, and a minimum period of twelve months has elapsed from the time of their dismissal to the initiation of the reinstatement request, and where there are no outstanding disputes in respect of their dismissal. In that circumstance, the policy mandates that the reinstated employee is to sign a continuing employment contract, as elaborated at pp. 51-52:
Continuing Employment Contract:
Employees who are reinstated under the terms of these guidelines will be required to sign the CN Continuing Employment Contract for continued employment. Any breach of the contract will result in dismissal with no further consideration for reinstatement.
As a condition of employment and to support relapse prevention the employee will be required to enter a follow-up program including: an assessment by a substance abuse specialist. If this assessment indicates failure to comply with the terms of the rehabilitation program, and the employee is not following the return to work medical assessments, the reinstatement becomes null and void (see Continuing Employment Contract).
As a means of relapse prevention the reinstated employee also agrees to liaise regularly with two members of the EFAP committee chosen by him/herself. Such peers will be authorized by the employee to regularly provide reports on the employee’s progress to those monitoring the contract.
A record of the employee’s reinstatement contract will be held by the District Manager or designate. In addition, a copy will be appended to the employee’s personnel file at the Administrative Support Centre.
The policy goes on to make provision for standards and procedures in respect of hosting, as well as contractors and tenants. Appendix A.1 deals with dove-tailing the policy with the Company’s Employee and Family Assistance Program (EFAP). Appendix B speaks to the union/management by-pass agreements as they relate to the policy, while Appendix C elaborates medication guidelines.
Among the questions and answers of interest, which appear at the end of the booklet, is perhaps the most fundamental question, dealt with at p. 68:
1. Why was it necessary to issue this policy?
CN is committed to the safety of employees, customers, and the communities in and through which we operate. As part of this commitment, the company felt the current policies needed to be clarified, updated, and communicated more effectively. This process was started in 1996 in response to a combination of factors, including:
With our ongoing commitment to health and safety, and priority on being the safest railway in North America, it was important to develop a clear policy and procedures that will help us provide the safest possible working conditions for all employees, free of the negative effects of alcohol or drug use.
The CAW relies on a number of decisions by boards of arbitration, human rights tribunals and the courts to support its argument that the whole of the Company’s drug and alcohol policy, or alternatively certain parts of it, are contrary to the collective agreements and to the law of the land, in particular the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended. Among the arbitration awards cited by the CAW is Re Provincial-American Truck Transporters and Teamsters Union, Local 880 (1991) 18 L.A.C. (4th) 412 (Brent). That case concerned a challenge to the policy of a trucking company requiring the mandatory periodic drug testing of its highway drivers. The company, whose drivers occasionally travelled through the United States enroute to Western Canada from Chatham, Ontario, decided that its drivers should be required to take the U.S. Department of Transportation physicals, part of which included a mandatory test for drug and alcohol use by means of urine specimens. As the award makes clear, there was no legal obligation on the part of the employer to comply with the American drug testing regime. The board of arbitration found that the ability of the Company to require medical examinations, expressly contained within article 13 of the collective agreement, did not give express or implied authority for mandatory universal drug testing. Citing the decision in Re Canadian Pacific Ltd. and U.T.U. (1987), 31 L.A.C. (3d) 179 (MG Picher), at pp 423-24 Arbitrator Brent noted that that award limits the right to demand a drug test "… to situations where a carrier has reasonable grounds to believe that there could be impairment while on duty." She further indicated that in her view the issue of drug and alcohol testing is analogous to employee searches, to the extent that privacy interests of employees are similarly affected in both circumstances. In the final analysis, the arbitrator concluded that the collective agreement language permitting the employer to require medical examinations, the analogous principles emerging from the search cases and the analysis of reasonable and probable cause reflected in the Canadian Pacific case placed appropriate constraints on the employer’s ability to require drug testing. At p. 425 Arbitrator Brent reasoned and concluded as follows:
Accepting then that the search analogy is appropriate, and that the collective agreement here is broad enough to allow the company to make drug and alcohol testing part of a medical examination, what then is the result? If there is reason to demand a test, then a test can be demanded. That is, if a particular employee gives the company reasonable grounds for believing that his/her fitness to perform the job safely is impaired by use of alcohol or drugs, then the company should be able to test as part of its rights under art. 13. If mandatory universal testing is to be justified, absent a specific term allowing it, then there should at least be evidence of a drug and/or alcohol problem in the workplace which cannot be combated in some less invasive way. In this case we have no such evidence. As a consequence, it would not be a reasonable interpretation of art. 13 to give it a meaning which would allow such a serious intrusion into the off-duty conduct and privacy of the employees. Article 13 does not, in our view, generally waive the employees’ right to privacy where there is no reasonable basis for demanding a drug test. Much clearer language would be required to do that.
Looking at the issue from another perspective, it has long been recognized that unilaterally imposed rules must meet certain criteria. Those criteria were catalogued in KVP, supra, which has been cited ever since as a leading authority. One criterion which must be satisfied is the reasonableness of the rule. In this case, it is difficult to satisfy the reasonableness test, even accepting the obvious safety concerns and public duty, for the following reasons. The testing was done before the U.S. regulations became effective, and even had they been effective, Canadian drivers are exempt from their application at least until 1992. There was no evidence of any adverse impact on the company’s operations by reason of substance abuse among employees. There was no evidence of any problems regarding impaired drivers which were not being adequately addressed by the existing rules and regime of physical examinations. There was nothing to suggest that the existing method of certification by the physician that the employee was not addicted to alcohol or drugs was ineffective in keeping such drivers employed by the company off the road.
Counsel for the CAW further referred the Arbitrator to the extensive award of the majority of a board of arbitration chaired by Arbitrator John D. McAlpine in Esso Petroleum Canada IOCO Refinery, a division of Imperial Oil Limited and Communications, Energy & Paperworkers’ Union, Local 614 (1994), 56 L.A.C. (4th) 440. In that case the union took issue with the alcohol and drug testing policy established by Esso Petroleum Canada, as applied to the IOCO Refinery at Port Moody, British Columbia. As in the instant case, the company’s policy at issue in Esso Petroleum Canada established strict rules for employees occupying safety sensitive positions and less stringent rules for all other employees.
The work rules considered by the board of arbitration under the Company’s policy are in a number of respects similar to certain of the rules being challenged in this grievance. They read, in part, as follows:
(G) WORK RULES CONCERNING POSSESSION, USE OR EFFECTS OF SUBSTANCES
(1) In order to minimize the risk of impaired performance due to substance use, the following are strictly prohibited for employees in all job categories. Violations are grounds for disciplinary action up to and including termination of employment:
(a) use, possession, distribution, offering or sale of illicit drugs, illicit drug paraphernalia or unprescribed drugs for which a prescription is legally required in Canada, while on company business or premises;
(b) presence in the blood of illicit drugs, unprescribed drugs for which a prescription is legally required in Canada, or their metabolites while on company business or premises;
(c) use, possession, distribution,, offering or sale of alcoholic beverages on company premises, except for approved social functions and other exceptions set out in the policy supplements;
(d) having a blood alcohol concentration in excess of .04 percent (.04 grams per 100 ml) while on company business or premises;
(e) intentional misuse of prescribed medications, over-the-counter medications or other substances while on company business or premises; and
(f) being unfit for scheduled work due to the use or after-effects of alcohol, illicit drugs, unprescribed drugs for which a prescription is legally required in Canada, or the intentional misuse of medications.
In addition, and without being exhaustive, the policy placed upon employees or candidates for employment in safety sensitive positions the obligation to disclose any present or past substance abuse problem, with such an employee to be removed from a safety sensitive position until the completion of a reinstatement/entry review process to the employer’s satisfaction.
The Esso Petroleum Canada work rules made further provision for the identification /confirmation of substance abuse work rules violations which read, in part:
(2) All job applicants or employees are subject to mandatory testing for alcohol or drugs under the following circumstances, as further defined in the policy supplements:
(a) a test for specified drugs after an offer of employment has been made, with employment conditional upon a negative result;
(b) a test for alcohol and specified drugs:
(i) after a significant work accident, incident or near miss as determined by management;
(ii) where reasonable cause exists to suspect alcohol or drug use or possession in violation of this policy; and
(c) where otherwise required by law.
(3) Testing for alcohol or specified drugs may also be conducted on a voluntary basis during or after a rehabilitation program. Mandatory testing will be conducted on an unannounced periodic or random basis as part of a post-rehabilitation monitoring and aftercare agreement permitting an employee with a past substance abuse problem to enter or return to a safety-sensitive position.
(4) Candidates for employment in, or transfer or promotion to, safety-sensitive or specified executive positions are also subject to pre-assignment testing for alcohol and specified drugs, with entry conditional upon a negative result. Thereafter, incumbents in safety-sensitive or specified executive positions are subject to unannounced random testing for alcohol and specified drugs.
(5) A positive test result, failure to report for a test, refusal to submit to a test, refusal to consent to disclosure of a test result to management, or an attempt to tamper with a test sample are grounds for disciplinary action up to and including termination of employment.
Under the Esso Petroleum Canada policy alcohol tests are to be by breathalyzer, breath tube device or saliva strip and drug tests to be by urinalysis by the same two step system utilized by CN, namely initial screening by immunoassays and confirmations by gas chromatography/mass spectrometry.
After an extensive review of the academic literature and jurisprudence in the field Arbitrator McAlpine rejected the fundamental arguments of both parties. He declined to accept the first position of the union, to the effect that no alcohol or drug testing could occur absent specific consent. In so doing Arbitrator McAlpine distanced himself somewhat from the approach taken by Arbitrator Kenneth Swan in Re Canada Post Corp. and Canadian Union of Postal Workers (plant security national policy grievance) (1990), 10 L.A.C. (4th) 361 (Swan). In that award Arbitrator Swan was called upon to rule on certain corporation rules regarding searches of employees and their possessions as a measure of security against theft. He held that as a general rule the privacy of the person enjoyed by an employee can only be abrogated by an employer by statutory authority or by contractual consent. In declining to follow the strict contractual approach adopted by Arbitrator Swan, and also reflected in an award dealing with the fingerprinting of employees, Canada Post and Canadian Union of Postal Workers (1988), 34 L.A.C. (3d) 392 (Bird), he commented, in part, as follows, at p. 24:
With deference to the views expressed by these highly experienced arbitrators in the Canada Post cases, we do not agree. The issues before the Board involve not only the civil rights of employees but also the employer’s justifiable interest in the safety of the workplace. Those issues cannot be determined in a vacuum. The facts and circumstances including real evidence of a threat to the employees’ safety and the protection of the employer’s property will necessarily shape the Board’s decision. In our view, neither the managerial rights of the employer nor the rights of privacy of the employee are absolute. Realistically viewed this arbitration involves the balancing of interests.
In support of the balancing of interests approach Arbitrator McAlpine further cited the award of then Arbitrator Vickers in Re Doman Forest Products Ltd., New Westminster Division and Doman International Woodworkers, Local 1-357 (1990), 13 L.A.C. (4th) 275 (Vickers). In that award Arbitrator Vickers declined to follow the contractual approach with respect to employees’ privacy rights concerning matters of employee surveillance by the employer. At pp. 281-2 of that award Arbitrator Vickers commented:
I accept that an employee has a right to freedom of privacy, but I do not need to go as far as the language in Re Canada Post. In my opinion it is a balancing of interests that is required. The employee’s right to privacy weighed against the company’s right to investigate what it might consider to be an abuse of sick leave …
In opting for the balancing of interests approach Arbitrator McAlpine also rejected the submission of the company, apparently made within the context of a balancing of interests argument, based upon certain evolving jurisprudence in the United States (Skinner, Secretary of Transportation v. Railway Labour Executives’ Association (1988), 489 U.S. 602 (U.S.S.C.) and National Treasury Employees’ Union v. Von Raab (1989), 489 U.S. 656 (U.S.S.C.), suggesting that employees in safety sensitive positions have a "diminished expectation of privacy". At p. 21 Arbitrator McAlpine comments:
Of course a board of arbitration must take account of "operational realities". The realities of safety-sensitive positions may mandate a higher scrutiny by an employer of an employee’s fitness to work. But we do not share the view that the "diminished expectation of privacy" is analytically a useful concept. Simply put, why should an employee expect his rights of privacy to be overridden, if in the balance that right of privacy outweighs the employer’s concern for safety.
In constructing the balancing of interests approach Arbitrator McAlpine reviews a number of prior awards, including the award of Arbitrator Brent in Re Provincial American Truck Transporters, described above, as well as Westfair Foods Ltd. v. United Food and Commercial Workers International Union, Local 777, an award of Arbitrator Richard B. Bird dated June 21, 1991 and Re Royal Oak Mines Inc. and Canadian Association of Smelter & Allied Workers, Local 4 (1992) 25 L.A.C. (4th) 26 (Bird). He also gave consideration to decisions of the Supreme Court of Canada concerning the use of blood samples, Regina v. Dyment  2 S.C.R. 417 (S.C.C.) and Pohoretsky v. the Queen , 1 S.C.R. 945 (S.C.C.). At p. 28 Arbitrator McAlpine concluded as follows with respect to the approach to be taken in the balancing of interests test:
From these authorities we distil a two step test: the first, being the test of justification or adequate cause. Is there evidence of a drug and/or alcohol problem in the workplace? Is there a need for management’s policy?
The second being a test of reasonableness including a consideration as to the alternatives available and whether the problem in the work place could be combated in a less invasive way.
This Board adopts this two step process as appropriate for the determination of the issues in this case.
In applying the balance of interests approach to the fact situation before it the majority of the board of arbitration in the Esso Petroleum Canada case found that certain aspects of the policy were permissible while others were not. A summary of the board’s conclusions at pp. 54-55 reads as follows:
As evidence of the further concern of arbitrators with respect to the imposition of mandatory drug testing the CAW cites the decision of Arbitrator Williams in Re Cominco Ltd. and United Steel Workers of America, Local 840. In that case the arbitrator, having found that two grievors consumed marijuana on work premises during working hours, albeit they were not proved to be impaired, declined to order mandatory drug testing as part of a condition of reinstatement, where the arbitrator did impose other conditions concerning their participation in a drug rehabilitation program. At p. 215 Arbitrator Williams comments:
Like Arbitrator Hope in the case of Re Quintette Coal Ltd. and U.S.W.A., Loc. 9113 [summarized 14 C.L.A.S. 2], I too endorse the reasons set forth in Re Canadian Pacific Ltd. and U.T.U. (1987), 31 L.A.C. (3d) 179 (M.G. Picher), that it may be appropriate to order mandatory drug testing of an employee where reasonable justification is demonstrated. It is very clear, however, that such an order is a serious intrusion into civil liberties and the privacy of an employee. Where it is less intrusive to monitor the conduct of an employee in a set of circumstances such as these, the arbitrator in my view ought to exercise restraint.
Similarly, in Re C.H. Heist Ltd. and Energy & Chemical Workers Union, Local 848 (1991) 20 L.A.C. (4th) 112 (Verity) the arbitrator expressly found that the Company could not legitimately request a drug test of an employee suspected of smoking marijuana merely by reason of the smell of cannabis in the area where he was. At p. 122 Arbitrator Verity stated, in part:
In my opinion, such a requirement for testing can be justified only by an express or implied term of the collective agreement contemplating such a procedure or on reasonable and probable grounds of the evidence of a drug problem or drug abuse in the workplace. On the evidence adduced, I must conclude that there was no justification to require the grievor to submit to a drug test based on reasonable and probable grounds to suspect drug use.
As a further example of a board of arbitration’s examination of circumstances which do amount to reasonable grounds for drug testing an employee, the CAW refers the Arbitrator to Re City of Winnipeg and Canadian Union of Public Employees, Local 500 (1991), 24 L.A.C. (4th) 441 (Baizley). In that case an employer imposed periodic drug testing on an employee as a condition of reinstatement, following his removal from service for the use of marijuana while working on a city refuse truck. In that circumstance the arbitrator found that the employer’s condition was justified, commenting, in part, at p. 446:
… the facts demonstrated that there was a legitimate concern over safety on the part of the city. Given the grievor’s admitted involvement with drugs in the workplace on more than one occasion, there was objective evidence to be concerned that the grievor had a dependency or an addiction. Therefore, it was not unreasonable for the city to take the action it did.
The Union’s attack on the Company’s policy to prevent workplace alcohol and drug problems is fundamental. It begins its submission to the Arbitrator by questioning whether privacy rights can be compromised by purporting to balance the interest of employees and employers, thereby giving employers certain encroachments on what it characterizes as the vital personal rights of individuals. It cites article 12 of the Universal Declaration of Human Rights (U.N. DOC. A/811), adopted December 10, 1948 which reads as follows:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone had the right to the protection of the law against such interference or attacks.
Counsel for the Union also cites article 17 of the Covenant on Civil and Political Rights adopted by the UN General Assembly on December 16, 1966, effectively re-stating the content of article 12.
Counsel submits that these fundamental principles have become entrenched in Canadian arbitral jurisprudence. In that regard he draws the Arbitrator’s attention to his own words in Monarch Fine Foods Co. Ltd. and Milk and Bread Drivers, Dairy Employees Caterers and Allied Employees, Local 647 (1978), 20 L.A.C. (2d) 419 (M.G. Picher) at p.421:
It is well established that persons do not by virtue of their status as employees lose their right to privacy and integrity of the person. An employer could not at common law assert any inherent right to search an employee or subject an employee to a physical examination without consent. … Thus there is nothing that can be described as an inherent management right to subject an employee to what would otherwise be a trespass or an assault upon the person. …
Counsel likewise cites the following words of Arbitrator Larson in Shell Canada Products Limited (Shellburn Refinery) (1990) 14 L.A.C. (4th) 75 at p. 79:
[The right of privacy not to be required to disclose information about one’s medical condition] is based on guarantees provided at common law against infringement upon the physical integrity of the person. Those laws take several different forms but include prohibitions against such things as trespass against the person, assault, battery, and unlawful confinement and they apply with equal force in the employment relationship. The employee does not leave those protections at the company gate.
Also, in Re Thompson and the Town of Oakville  1 O.R. 122 (Ont. H. Ct.) it was held, in the context of a police force requiring its members to be examined by its medical practitioner: "… The right of employers to order their employees to submit to an examination by a doctor of the choice of the employer must depend on either contractual obligation or statutory authority."
It is from the foregoing principles that the Union draws its first and most fundamental position, namely that absent statutory authority or specific consent, either contractual or personal, an employer can exercise no authority to require its employees to subject themselves to a physical examination of any kind, including a drug or alcohol test which requires the surrendering of bodily fluids or breath samples.
The Union submits that there is no contractual authority to be found within the terms of its collective agreements with the Company, so as to amount to consent to drug and alcohol testing of any kind. Its counsel notes, for example, that collective agreement 12, which governs car mechanics, does make provision for mandatory medical examinations for certain employees, in the following terms in rule 6.27:
6.27 Car mechanics who are protecting a machine which requires that they drive a motor vehicle on highways or other public roads must equip themselves with the necessary driver’s licence in accordance with the applicable Provincial Motor Vehicle Act. In addition they must pass the Company’s driver’s test and medical examination and must provide the original copy of their driver’s abstract upon request. The fee for the cost of the driver’s abstract will be paid by the Company or be reimbursed to the employee.
Counsel submits that the parties did turn their minds to the limitations attaching to the employer’s right to demand a medical examination, and that an example of those limitations is reflected in the above rule. Counsel maintains that any further encroachments on the privacy of individuals which would require a physical examination of any kind must also be negotiated with the Union. Absent any negotiated provisions of that kind the Union submits that the requirement of the employer of drug and alcohol testing, within the framework of its policy, is beyond lawful authority.
The Union submits that there is, in addition, no statutory authority for the Company’s policy. It notes that such statute law as exists, notably the Railway Safety Act, S.C. 1988 c.40, specifically describes the circumstances in which a railway can demand a company sponsored medical examination, as reflected in section 35.1 which reads as follows:
35.1: A person who holds a position in a railway company that is declared by regulations made under paragraph 18(1)(b) to be a position critical to safe railway operations, referred to in this section as "designated position", shall undergo a company sponsored medical examination, including audiometric and optometric examinations, at least every twelve months.
Counsel emphasizes that section 18 of the Railway Safety Act expressly empowers the governor-in-council to regulate with respect to the control or prohibition of drug and alcohol use in positions which are determined to be safety sensitive. He stresses that, to date, no regulations have in fact been promulgated under that federal authority.
In sum, the Union’s grievance is based on the paramountcy of an individual’s common law right to be free from unwarranted trespass or assault at the hands of his or her employer. That theory, it submits, is well described by Ms. Catherine Wedge in an article entitled "Limitations on Alcohol and Drug Testing in Collective Bargaining Relationships", (1994 Canadian Labour Law Journal, 2:461).
The Union argues that the legal incapacity of the Company to require drug and alcohol testing absent statutory or consensual authority is fundamental, and does not arise merely by reason of the fact that such a policy might be useful or even justified. Counsel notes, in addition, that arbitral jurisprudence has indicated that the implementation of a drug and alcohol testing policy must, in any event, first be predicated on proof of a justified need for such extraordinary measures. He points to the decision of Arbitrator McAlpine in Esso Petroleum Canada, IOCO Refinery, touched upon above. Counsel notes that in that award Arbitrator McAlpine reviewed several prior awards dealing with the issue of whether an employer has first established the need for recourse to the extraordinary measures of drug and alcohol testing, including Re Provincial–American Truck Transporters and Teamsters Union, Local 880 (1991), 18 L.A.C. (4th) (Brent); Re Royal Oak Mines Inc. and Canadian Association of Smelter and Allied Workers, Local 4 (1992), 25 L.A.C. (4th) 26 (Bird) and Re Westfair Foods Limited v. UFCW, Local 777 (Bird) (June 21, 1991). From the foregoing authorities and his own analysis Arbitrator McAlpine distilled what the Union characterizes as the following two critical questions which must be satisfied before an employer can resort to drug and alcohol testing:
1. Is there evidence of a drug and/or alcohol problem in the workplace? Is there a need for management’s policy?
2. Was there a consideration as to the alternatives available, and may the problem in the workplace be combated in a less invasive manner?
It is the position of the Union that the Company has not demonstrated the existence of a workplace drug and alcohol problem which would justify the extraordinary measures of its newly adopted policy. It argues that no data with respect to problems of workplace impairment or drug and alcohol possession and use has been offered by the Company in justification of its policy. It further argues that the Company had ample means to deal with problems of drugs and alcohol in the workplace through pre-existing policies and programs, including a drug-free workplace policy introduced effective March 27, 1990, as well as its Employee and Family Assistance Program (EFAP) which includes a Human Resources Manual Directive updated in September of 1995. The Union submits that the approach to the personal problems of employees relating to drugs and alcohol was always a joint effort between the Company and the Union, as reflected in the following passage from the EFAP policy:
Within the context of this policy, to recognize the requirements of the Railway Safety Act relating to the control or prohibition of the consumption of alcoholic beverages and the use of drugs and the establishment of support programs and standards applicable to such programs. In compliance with the above requirements, unionized employees occupying positions declared as being critical to safe railway operations having a problem relating to the excessive or inappropriate use of drugs or alcohol will be treated in keeping with the provisions of a joint union/management agreement on the control of drug and/or alcohol abuse.
The Union deplores what it characterizes as the Company’s unilateral departure from the co-operative EFAP approach, noting that under the new Company policy, for the first time, its members are now subject to drug and alcohol testing upon application for a promotion or transfer, return from a leave of absence or whenever the employee is suspected of impairment at work.
Counsel notes that there have been prior arrangements whereby, pursuant to the agreement of the Company and Union, individual employees with recognized problems in relation to drugs and alcohol were, on a case by case basis, made subject to terms of employment which might include drug and alcohol testing for a period of time. Counsel also stresses that prior to the introduction of the disputed policy CN did not categorize CAW workers as holding safety sensitive positions, and that a multi-union "union/management agreement on the control of drug and/or alcohol abuse" signed between the Company and five other bargaining agents was not agreed to by the CAW which has consistently sought, through various rounds of bargaining, to establish its own joint CAW-CN EFAP program, including provisions for the detection and treatment of substance abuse. Its efforts in that regard have been unsuccessful to date.
The Union also submits that in addressing the question of whether the Company’s policy is justified, that policy must stand up to the time honoured matrix of the general arbitral jurisprudence relating to an employer establishing workplace rules, following the line of authority based on the KVP decision (Re KVP Co. Ltd. (1965) 16 L.A.C. 73 (Robinson)). In that regard it cites the following passage from the award of Arbitrator Brent in Provincial–American Truck Transporters, cited above, at p. 425:
Looking at the issue from another perspective, it has long been recognized that unilaterally imposed rules must meet certain criteria. Those criteria were catalogued in KVP, supra, which has been cited ever since as a leading authority. One criterion which must be satisfied is the reasonableness of the rule. In this case, it is difficult to satisfy the reasonableness test, even accepting the obvious safety concerns and public duty, for the following reasons. The testing was done before the U.S. Regulations became effective, and even had they been effective, Canadian drivers are exempt from their application at least until 1992. There was no evidence of any adverse impact on the company’s operations by reason of substance abuse among employees. There was no evidence of any problems regarding impaired drivers which were not being adequately addressed by the existing rules and regime of physical examinations. There was nothing to suggest that the existing method of certification by the physician that the employee was not addicted to alcohol or drugs was ineffective in keeping such drivers employed by the Company off the road. There has never been any practice of testing urine for the presence of drugs or alcohol which has been accepted by the Union.
Additionally, the Union maintains that the Company cannot show that measures less invasive than drug and alcohol testing are not available to it to properly address substance abuse problems in the workplace. Among the alternative measures which the Union submits are available to CN are those identified by Arbitrator McAlpine in the Esso case, which counsel lists as follows:
(a) clear and unequivocal rules for the conduct of employees in the workplace;
(b) peer prevention programs;
(c) supervision and evaluation;
(d) performance testing;
(e) employee assistance programs.
With respect to the need to exhaust the consideration of alternatives to encroaching on the privacy of individuals through drug and alcohol testing, the Union further cites The Ontario Law Reform Commission’s Report on Drug and Alcohol Testing in the Workplace (September, 1992). In addition to recommending a legislated ban on all drug and alcohol testing by employers, the Law Reform Commission report recommends recourse to alternative means of detection, including performance testing which "… evaluates the psycho-motor skills of employees by means of mechanical aptitude tests and computer programs." It is not clear, however, to what extent the report of the Law Reform Commission comments on or understands the availability and practicability of administering such tests day to day in the field, presumably in reasonable cause situations.
The CAW next submits that urinalysis is, in any event, "a tenuous link to impairment". It submits that in considering the reasonableness of the Company’s drug testing policy, and accepting that the Company has a legitimate business interest in ensuring that workers not be impaired by drug use while on duty, it is difficult to justify a testing system which does not, of itself, prove actual impairment. In that regard counsel refers the Arbitrator to the decision of the Board of Inquiry under the Ontario Human Rights Code in Re O.H.R.C. and M. Entrop and Imperial Oil (1996) 27 C.H.R.R. D/210; O.J. No. 422 (Div. Ct.). Counsel notes that that deficiency was also recognized in the report of the Ontario Law Reform Commission, and is reflected in the following passage from a decision of this Arbitrator in Canadian National Railway Company and United Transportation Union (1990), 11 L.A.C. (4th) 364 (M.G. Picher), at pp. 367-68:
It should be noted that there is no federal regulation in Canada regarding the detection of drugs in the railway industry. Furthermore, to date the Company has issued no internal regulation on this subject. The presumption of impairment, invoked in the American regulation by a positive urine test, has no basis in logic or in science. It is admitted that this test demonstrates only the use of a drug during the sixty days prior to the taking of the sample. It provides no precise information concerning when, where or in what quantity the drug was taken. Therefore, the presumption of impairment is a legal construction decreed for the particular purposes of the American regulation. …
Under the U.S. regulation then in effect, an employee testing positive for drugs in a urinalysis test could voluntarily submit a blood sample to disprove actual impairment.
Through the expert testimony of Dr. B.M. Kapur the Union stresses the fact that a urine test can yield false positives, as for example might be caused by the consumption of poppy seeds yielding positive results for opiates. Moreover, urinalysis cannot give any meaningful indication as to the precise time at which a drug might have been consumed, the amount consumed, or the method by which it was ingested. Fat soluble drugs such as marijuana can, for example, be deposited in the body’s fat tissues and detected through urinalysis as much as sixty days after consumption. According to Dr. Kapur, as distinguished from alcohol analysis which can give reliable indications of impairment, no conclusions with respect to impairment by drugs can be drawn from either blood or urine tests with any meaningful accuracy, even at high levels of concentration.
On the strength of the foregoing arguments, as noted above, the position of the CAW is that the Company’s policy is unreasonable and that, in any event, there can be no drug or alcohol testing of any employee absent statutory authority or contractual consent. No such consent being found in the collective agreement, it asserts that the Company’s policy must be declared null and void.
The Union advances an alternative position, should the Arbitrator reject its primary argument that there can be no substance testing without statutory authority or consent, whether given individually or through the agreement of a bargaining agent. The Union submits that even if it is accepted that alcohol and drug testing can be appropriate in certain circumstances, for example where there may be reasonable and probable grounds to believe that a worker is impaired due to alcohol or drug consumption, it becomes important to distinguish various categories of situations where the intrusion of testing is not in fact justified.
In that context the Union challenges outright what it characterizes as the "not for cause drug testing" found within the Company’s policy. The two instances of not for cause drug testing which the Union identifies are, firstly, drug testing when an employee returns to work following a leave of absence of six months or more and, secondly, drug testing administered upon the application of an employee to transfer or be promoted into a risk sensitive position. The position of the Union is that in neither of those circumstances can the Company advance a legitimate business purpose for recourse to the extraordinary and intrusive measure of drug testing the employee concerned. In approaching that issue the Union relies in substantial part on prior decisions issued by this Arbitrator within the railway industry. In particular, reference is made to the first case which dealt with the issue of drug testing among railway employees, Canadian Pacific Limited and United Transportation Union (1987), 31 L.A.C. (3d) 179 (M.G. Picher). Counsel refers the Arbitrator to the following passage from that award at pp. 185-186:
Does an employer’s right to require an employee to undergo a fitness examination extend to requiring a drug test? I am satisfied that in certain circumstances it must. Where, as in the instant case, the employer is a public carrier, and the employee’s duties are inherently safety sensitive, any reasonable grounds to believe that an employee may be impaired by drugs while on duty or subject to duty must be seen as justifying a requirement that the employee undergo a drug test. Given contemporary realities and the imperative of safety, that condition must be seen as implicit in the contract of employment, absent any express provision to the contrary.
What guidance do the foregoing considerations provide in the instant case? It appears to the Arbitrator that a number of useful principles emerge. The first is that as an employer charged with the safe operation of a railroad, the Company has a particular obligation to ensure that those employees responsible for the movement of trains perform their duties unimpaired by the effects of drugs. To that end the Company must exert vigilance and may, where reasonable justification is demonstrated, require an employee to submit to a drug test. Any such test must, however, meet rigorous standards from the stand-point of the equipment, the procedure and the qualifications and care of the technician responsible for it. The result of a drug test is nothing more than a form of evidence. Like any evidence, its reliability is subject to challenge, and an employer seeking to rely on its results will, in any subsequent dispute, bear the burden of establishing, on the balance of probabilities, that the result is correct. The refusal by an employee to submit to such a test, in circumstances where the employer has reasonable and probable grounds to suspect drug use and a risk of impairment, may leave the employee liable to removal from service. It is simply incompatible with the obligations of a public carrier to its customers, employees and the public at large, to place any responsibility for the movement of trains in the hands of an employee whom it has reasonable grounds to suspect is either drug-dependent or drug-impaired. In addition to attracting discipline, the refusal of an employee to undergo a drug test in appropriate circumstances may leave that employee vulnerable to adverse inferences respecting his or her impairment or involvement with drugs at the time of the refusal. On the other hand, it is not within the legitimate business purposes of an employer, including a railroad, to encroach on the privacy and dignity of its employees by subjecting them to random and speculative drug testing. However, where good and sufficient grounds for administering a drug test do exist, the employee who refuses to submit to such a test does so at his or her own peril.
Counsel for the Union further refers the Arbitrator to another early arbitration award dealing with the same issue, Re Canadian National Railway Company and United Transportation Union (1989) 6 L.A.C. 381 (M.G. Picher) at p. 387:
As may be gleaned from the foregoing, the right that an employer may have to demand that its employees be subjected to a drug test is a singular and limited exception to the right of freedom from physical intrusion to which employees are generally entitled by law. As such it must be used judiciously, and only with demonstrable justification, based on reasonable and probable grounds.
Further reference is made to the following passage from CROA 2167, in reference to CROA 1703, the Canadian Pacific Limited case cited above:
For the reasons related in CROA 1703, … the right of the Company to require an employee to undergo an intervention as intrusive as a drug or alcohol test is extraordinary. It must, therefore, be exercised in a considered and responsible fashion. To the extent that the refusal of an employee to take a drug or alcohol screening test, where reasonable grounds exist for requiring one, can be used to draw adverse inferences against the employee, to some degree the converse must also be true. Where, as in the instant case, an employee expresses a willingness to undergo a breathalyzer or alcohol screening test, it is not unfair to conclude that evidence of such willingness is, to some extent, corroborative of the employee’s denial of impairment.
The Union’s restatement of principle derived from the foregoing passages of the arbitral jurisprudence is relatively succinct. It holds, in effect, that the drug testing of an employee is of itself unreasonable, particularly if the Company has no probable grounds to conclude that an individual is or has been impaired while on duty. On that basis the Union submits that the mere passage of six months during a leave of absence from the workplace does not, of itself, give rise to reasonable and probable cause for a drug test. It further submits that such an approach, which is part of the Company’s policy, is unreasonable and discriminatory. For example, it is suggested that the policy is more likely to affect women, as they may more commonly be absent by reason of maternity or parental leaves of absence, to a maximum of as much as forty-one weeks in a fifty-two week period. On what basis, the Union asks, should a new mother returning to work following a maternity leave, or another employee returning after a personal leave granted pursuant to rule 15 of the collective agreement for furtherance of his or her education, be made subject to drug testing upon re-entering the workplace? Why, the Union asks, should an employee who suffers an unfortunate injury or illness which occasions an absence from work of six months or more be subjected to the indignity and intrusion of a drug test upon his or her return to work? In the Union’s submission there is simply no logical connection between an employee’s absence from work and a considered basis for demanding a drug test of that individual, based on reasonable and probable cause as developed in the arbitral jurisprudence. In the Union’s submission the same considerations apply when an individual seeks to transfer or to be promoted from a non-risk-sensitive position into a risk-sensitive position. It asserts that there is nothing in that scenario, any more than a six month absence, which gives the Company probable cause to suspect past or present impairment while on duty, so as to justify the extraordinary measure of a drug test. The Union submits that the policy’s conditions attaching to transfer and promotion are tantamount to an improper attempt to amend the collective agreement provisions which govern leaves of absence, transfer and promotion. It also questions whether the policy as expressed can be squared with section 209.1 of Part III of the Canada Labour Code, which guarantees the right of return of female employees to their employment following maternity and parental leaves.
Finally, the Union questions on what basis any form of drug and alcohol testing can be justified as applied to employees in non-safety sensitive positions. In its submission, even where there may be reasonable grounds to suspect that an employee in a non-safety sensitive position is impaired while on duty, the alternative means of detection available to the employer, the ability to deal with the problem through support programs, EFAP programs and discipline and, most significantly, the reduced risk of physical harm which may be involved, for example, when a person occupying a clerical position is impaired, do not justify resort to the extraordinary and intrusive measure of drug testing by urinalysis. The Union therefore submits that reasonable cause testing of employees in non-safety sensitive positions is, very simply, not justified by any legitimate employer interest. It may be noted that the Company’s policy does require the drug testing of non-risk-sensitive employees in circumstances of reasonable cause, as well as upon promotion or transfer to a risk-sensitive position or a specified management position, and return to work after a violation of the policy following treatment.
The Union also questions the breadth of certain of the prohibitions contained within the Company’s policy, particularly as they may relate to the consumption of alcohol in relatively innocent circumstances. Stressing that in its view there should be no right to request a breathalyzer test absent reasonable and probable cause to do so, as suggested by the arbitrator in CROA 1886, the Union questions the legitimacy of the Company’s policy on an individual having alcohol in his or her body in certain off duty circumstances. For example, its Counsel notes that at page 20 the policy booklet contains the following statement:
Presence in the body of alcohol above the established cut-off level, when on duty or on company business or premises, is also prohibited for all employees.
Counsel for the Union submits that the above prohibition is unreasonably broad and restrictive. It would, he submits, result in the discharge for a violation of the policy of an off-duty worker who drinks a single beer, as a result of which the individual may have a blood alcohol count above the 0.02 standard established in the policy, and who then drives onto Company premises to pick up a fellow worker, while still off duty. In that circumstance, the Union submits, the off-duty employee who has consumed a single beer and has proceeded lawfully onto Company premises to pick up a friend is in violation of the policy and is subject to discharge. The Union also questions the breadth of the phrase "on company business", suggesting that a policy violation might attach to a person who is found to have minimal amounts of alcohol in his or her body at a social or charitable function sponsored by the Company. In the Union’s submission these provisions are overly broad, and reach well beyond what can fairly be characterized as legitimate employer interests. In effect, while the Union does not advocate a balancing of interests approach, it is of the view that there is, in any event, little balance in provisions which may be so extreme in their application, and which must inevitably encroach unreasonably on the privacy and dignity of individual employees.
The Union next challenges the Company’s approach to the definition of risk-sensitive positions. The definition of risk-sensitive employees is obviously important, to the extent that higher standards of compliance attach to them, and such employees are subject to immediate dismissal for any policy violation, as well as to more stringent testing obligations and requirements to understand and control their own use of over-the-counter and prescription medications. In that context the Union questions the broad scope of persons within its bargaining units who are identified as holding risk-sensitive positions, including persons in such occupations as stores attendants and senior administration clerks. Indeed, the Union questions on what basis the Company would include mechanics, electricians and labourers as risk-sensitive. In that regard it notes that rule 6.27 of collective agreement 12 does make specific reference to medical examinations for persons such as car mechanics who may drive a motor vehicle on public highways as part of their duties. That agreement does not, however, include drug or alcohol testing. The Union also notes that its members have not been generally considered "safety sensitive" with the tradition of the railway industry as regulated by Board Order O-9, a regulation made by the Canadian Transport Commission pursuant to the Railway Act and the National Transportation Act, as published in the Canada Gazette May 15, 1985, establishing railway vision and hearing examination standards for employees directly involved in the movement of trains and railway equipment.
While the Union does not hold up American law and regulations as a model to be emulated in the field of drug testing, it does stress that employees in the CAW bargaining units would not be covered by drug testing regulations in the American railway industry, the substance of which is to restrict drug testing to persons actually engaged in or connected with the movement of trains. In that regard counsel cites section 219 of the Federal Railroad Administration Regulations which defines "covered employees" for the purposes of the American drug and alcohol testing regulations as persons engaged in the actual operation of trains, or signals and dispatching services. Counsel submits that it is not insignificant that persons who hold positions in the CAW bargaining units, and who work in car and diesel shops, in stores or, as carmen do, on stationary trains, are not considered risk-sensitive in the United States. Therefore they should not be deemed risk sensitive for the purposes of the Company’s policy.
Counsel also notes to the Arbitrator’s attention that when the Ontario Northland Railway became subject to "Regulations Respecting Positions in Railway Companies Critical to Safe Railway Operations" under the Railway Safety Critical Positions Regulations, positions deemed critical to safe railway operations were limited to running trades employees, rail traffic controllers and trainmasters. They do not include CAW represented employees who inspect freight and passenger cars or locomotives. With respect to its own members, the Union also notes that there is no alcohol or drug testing policy adopted at ONR, and that CP’s drug and alcohol testing policy, apparently adopted in 1995, has not been applied to CAW shopcraft employees.
In the result, the Union submits that the blanket designation of employees covered by both collective agreement 12 (shopcraft employees) and collective agreement 5.1, which covers persons working in supply management departments such as stores attendants, and labourers in the mechanical department, is unduly broad and unjustified when regard is had to standards applied elsewhere, and to the actual requirements of the service. The Union submits that risk-sensitive designations within the Company must be restricted to positions whose duties and responsibilities relate directly to the movement of trains in relatively unsupervised circumstances.
It may be noted that at the hearing all parties agreed that the initial stage of the hearing is appropriate for dealing with matters of principle and general application arising from the policy. It is agreed that more specific questions as to whether particular positions or classifications within a bargaining unit are properly classified as risk-sensitive for the purposes of the policy are to be held in abeyance, and dealt with in a subsequent phase of the hearing. The Arbitrator therefore notes the parties’ agreement and retains jurisdiction to deal with such issues of that type as may remain outstanding following the issuing of this award and any further discussion between the parties.
The Union next challenges the cut-off level established for blood alcohol content in the Company’s policy, as applied to risk-sensitive employees. The specific provision in the policy booklet, found at p. 46, reads as follows:
For the purposes of this policy, a positive alcohol test will be one in which the blood alcohol concentration is .04 BAC or more. For those individuals in a risk-sensitive or specified management position, the cut-off level will be .02 BAC in all testing circumstances. In addition to those instances where an employee is subject to an unannounced testing program on return to duty after treatment, or on return to duty after a positive test result, a positive test will be one in which the blood alcohol concentration is .02 BAC or more.
The Union challenges the .02 BAC standard as unreasonable, and generally unrelated to the issue of impairment, which it maintains is the only matter which properly relates to a legitimate employer interest. More precisely, it submits, based on certain of the expert testimony which it has filed, that the cut-off level of .02 blood alcohol concentration for risk-sensitive persons is not a reliable means of detecting impairment, as the actual effect of alcohol and the issue of impairment must necessarily depend on specific individuals and is subject to a number of factors. The Union argues that the arbitrary determination of a .02 BAC cut-off is tantamount to the decreeing of "per se" impairment without appropriate reference to any of a number of personal or objective factors which may truly bear on an employee’s impairment by reason of alcohol consumption.
In support of its position on this issue the Union refers to the following excerpts from the written testimony of expert witness Dr. Mark Fillmore:
Disadvantages of determining impairment in the workplace by BACs:
Setting a legal BAC limit for determining impairment in the workplace is known as a "per se" law. While such laws are intended to improve safety in the workplace, they have a number of disadvantages (National Institute on Alcohol Abuse and Alcoholism, 1994). One important problem with this type of law is that the criterion of guilt is not based on any measure an individual’s actual level of performance. Many experts point out that there are large individual differences in the degree to which alcohol impairs the performance among individuals. Studies of alcohol impairment only report the average effect of alcohol on performance for a group of subjects at a given BAC. However, in all studies, some subjects may show no impairment at a given BAC, while others might be extremely impaired at the same BAC. Thus, BAC is not always a reliable indicator of impairment. There are also problems in executing such laws. In many cases, it becomes difficult to estimate the actual BAC at the time of the incident in question. Thus for these reasons it is unclear as to whether such per se laws can be properly implemented to reduce harm in the workplace.
Before examining the effect of alcohol on behaviour at a BAC of 20 mg/100 ml, it is informative to first consider the amount of alcohol that must be consumed by an individual in order to produce this BAC. In fact, the amount is quite small. In an average size man, weighing 80 kilograms (176 lbs.), only 12 grams of alcohol is required to raise his BAC to 20 milligrams per 100 millimetres. This is less alcohol than is contained in a single serving of a standard alcoholic beverage. A 341 millilitres bottle of beer (5% alcohol per volume) contains 13.4 grams of alcohol. A 1.5 ounce shot of 80 proof liquor, or a 5 ounce glass of wine (12% alcohol per volume) each contain 14.2 grams of alcohol. Thus just a single serving of one of these beverages can raise an individual’s BAC to 20 milligrams per 100 millilitres of blood.
There is substantial evidence that alcohol, at BACs below the legal limit for driving (i.e. 80 milligrams per 100 millilitres) may impair some types of skilled performance. Minimum thresholds for impairment can be as low as 40 milligrams per 100 millilitres. However, there appears to be no reliable evidence that impairment can occur at very low BACs in the range of 0-30 milligrams per 100 millilitres. There are also large individual differences in the degree to which alcohol impairs the performance among individuals, leading some to question the appropriateness of per se laws for BAC limits.
The Union’s submission is that the rule as framed by the Company, and in particular the setting of the standard for safety sensitive employees at .02 BAC for alcohol consumption, is tantamount to a rule that there can be no alcohol in the body while at work. It notes that that particular approach to the consumption of alcohol formed part of the policy struck down by Arbitrator McAlpine in the Esso case where he ruled, in part, as follows:
Again the focus of management’s rule is not upon impairment but upon the presence of alcohol in the body. It is therefore unacceptable.
The Union next challenges the obligation of self-declaration which the Company’s policy places upon employees making legitimate use of medications. At page 32 of the policy booklet employees are advised that they must:
Manage potential impairment during working hours due to legitimate use of medications by contacting their personal physician or pharmacists to determine if they can have a negative impact on performance; those in risk-sensitive and specified management positions must investigate and report any concerns to Medcan, who will assess the situation and advise the company of any requirement for modified work or temporary assignment;
Seek advice and follow appropriate treatment promptly if they suspect they have a substance dependency or emerging problem;
The Union submits that it is unrealistic, and inappropriate, to expect employees who may be developing a prescription drug dependency to recognize the problem themselves and seek help in its diagnosis and treatment. Its counsel argues that frequently the employee suffers confusion and denial, along with other negative symptoms such as deteriorating personal relationships, poor work performance or physical illness as a result of a drug dependency, and that it is unreasonable to expect the employee to self-diagnose and self-declare. He notes that Arbitrator McAlpine also struck down a self-declaration obligation in the Esso case, and that a similar result was arrived at in Entrop.
The Union also challenges the provisions of the drug and alcohol policy which provide for individual employees signing continuing employment contracts with the Company following the employee’s reinstatement after dismissal as a result of a violation of the policy, or after discharge for a violation of CROR rule G. The Union asserts that it is not open to the Company to negotiate individual terms of employment with any of the members of its bargaining unit, a matter which falls entirely within the purview of the trade union as exclusive bargaining agent. The Union asserts that the individual contract of continuing employment is, on its very face, contrary to the recognition clauses of the collective agreements which bind the Company, article 2.1 of agreement 5.1 and rule 55.1 of agreement 12. Article 2.1 of collective agreement 5.1 reads as follows:
2.1 The Company recognizes the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) as the sole collective bargaining agent with respect to wages, hours of work and other working conditions for all classes of employees enumerated in article 10.
Rule 55.1 of collective agreement 12 provides:
55.1 For the carrying out of this Agreement the Railway will deal only with the duly authorized officers of National Automobile, Aerospace, Transportation and General Workers Union of Canada – Local 100
In support of this aspect of its case the Union relies upon the authority of the decision of the Supreme Court of Canada in McGavin Toastmaster Ltd. v. Ainscough (1975), 54 D.L.R. (3rd) 1 (S.C.C.). The Union therefore seeks a general declaration that continuing employment contracts as described within the policy are improper and beyond the purview of the Company, save that such reinstatement contracts can, of course, be negotiated with the participation and concurrence of the Union.
The Union also challenges the conditions for reinstatement following dismissal described within the procedure outlined at page 50 of the policy booklet, including the Company’s requirement that an employee must have a minimum of two years’ compensated service prior to his or her dismissal to be entitled to consideration for the reinstatement program. In the Union’s submission, to the extent that the employer is dealing with an employee with a recognized physical disability, the obligation of accommodation cannot arbitrarily be restricted to employees with a certain level of service. The very essence of the exercise of accommodation is that it must be specific to the individual employee, and cannot be based on rules which rule out whole groups or classes of persons.
Next the Union takes strong objection to the condition that there be "no outstanding disputes regarding the aforementioned dismissal" before an employee is considered eligible for the reinstatement program. That provision, counsel argues, is tantamount to undermining the right of the employee to file a grievance under his or her collective agreement and to lawfully pursue it to its conclusion. Similarly, the Union submits that it amounts to an attempt to frustrate the access of employees to their rights under human rights legislation through a human rights complaint.
The Union also submits that the categorical conclusions which the policy asserts in respect of dismissal from employment as a consequence of violating the policy amounts to a rigid and arbitrary standard which departs from appropriate just cause analysis. In this regard the Union notes that the policy booklet states, in part: "Any confirmed violation of this policy by individuals holding risk-sensitive or specified management positions will result in dismissal from employment. … For individuals in risk-sensitive or specified management positions a verified positive test result, or refusal to complete the testing process set out under this policy, will result in immediate dismissal whether or not the alcohol or drugs were actually consumed on company business or premises or when on duty." Citing the procedural rules of the collective agreement, as for example rule 27 under collective agreement 12, the Union stresses that its collective agreements contain elaborate provisions for consideration of the facts of any case before an employee can be made subject to discipline or discharge. Counsel submits that the automatic discharge terms of the policy are contrary to those provisions and are generally inconsistent with accepted principles of just cause analysis. Counsel refers the Arbitrator to prior arbitral authority which confirms that in dealing with the duty of accommodation for disabled employees, which would include persons who are drug or alcohol dependent, there can be no general reference to categories of individuals, and there must always be close specific regard to the individual in question, with due allowance for his or her particular circumstances. In that regard counsel cites Canadian Pacific Limited and B.M.W.E. (1989) 7 L.A.C. (4th) 1 (M.G. Picher); Lornex Mining Corporation and Unites Steelworkers, Local 7619 (1983) 14 L.A.C. (3d) 169 (Chertkow).
The Union further challenges the obligations of whistle blowing as they are described within the policy. At page 33 of the policy booklet the following rule appears:
Any employee who has knowledge or suspicion of any breach of this policy is required to take the appropriate action to address the situation. Failure to do so may result in corrective action up to dismissal.
The Union objects strenuously to the use of the standard of "suspicion" as placing an affirmative obligation of action upon employees who, in fact, may or may not have the training or background to make judgements as to the impairment of other individuals, whether by drugs or alcohol. Noting that the same standard of "knowledge or suspicion" attaches to a supervisor, as reflected at page 34 of the booklet, the Union submits that the threshold so described is ambiguous, unworkable and inappropriate. The Union submits that a supervisor’s suspicion is, very simply, an insufficient basis to invade the privacy of an individual by either requiring him or her to submit to a drug/alcohol test, to attend at a medical examination with a doctor of the Company’s choosing or to attend an EFAP session which could result in the divulging of sensitive, personal information. In that regard counsel refers to the above quoted passage of this Arbitrator in Monarch Fine Foods Co. Ltd. at p. 421 and the following comments of Arbitrator Larson in Shell Canada Products Ltd. (Shellburne Refinery) (1990) 14 L.A.C. (4th) 75 (Larson) at p. 79:
The right of privacy not to be required to disclose information about one’s medical condition is based on guarantees provided at common law against infringement upon the physical integrity of the person. These laws take several different forms but include prohibitions against such things as trespass against the person, assault, battery, and unlawful confinement and they apply with equal force in the employment relationship. The employee does not leave those protections at the company gate.
The Union also questions the basis for the provisions of the policy whereby a worker judged disabled by reason of drug dependence, or the use of a prescription drug, may be transferred to another position either by the Company or by the judgement of a Medcan physician. The Union stresses that the collective agreements, for example rule 17 of agreement 12, make specific provision for circumstances in which employees suffering physical disabilities can be placed in modified positions, by agreement of the parties. The Union has no objection to placing disabled workers into modified duties, including workers with drug or alcohol dependency problems. Its concern, however, is that all such adjustments and transfers are to be made by agreement, with the concurrence of the Union, and are not matters within the exclusive purview of the Company.
The Union also submits that the provisions of the policy which deal with the conduct of searches and seizures for alcohol or drugs on Company owned premises are of themselves in violation of the Canadian Charter of Rights and Freedoms. The Union argues that to the extent that certain parts of the policy may involve searches by CN police, to the extent that such officers are appointed pursuant to section 158 of the Canada Transportation Act, S.C. 1996 c.10, they are "governmental actors" subject to the requirements of the Charter, and as such, require prior judicial authorization for searches. Counsel submits that the general vagueness of the policy with respect to the Company’s prerogatives in relation to search and seizure on its own premises are a violation of the prohibitions against unreasonable search and seizure protected within section 8 of the Canadian Charter of Rights and Freedoms. The Union also questions the extent to which the application of the policy might involve employees being arbitrarily detained or imprisoned contrary to section 9 of the Charter, coupled with the procedural protections of section 10.
Finally, the Union submits that much of the Company’s policy violates the substantive provisions of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The Union cites, in particular, the following provisions of the Act:
Section 10. Discriminatory policy or practice – it is a discriminatory practice for an employer, employee or organization or organization of employers
4. to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment.
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
Section 3(1) Prohibited grounds of discrimination – for all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
Section 25 disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
Counsel for the Union submits that it is not only an objective condition of disability but the perception of disability which can ground a violation of the Act for discrimination. The Union stresses that drug and alcohol dependence, or the perception of them, are an illness, as long recognized by boards of arbitration as well as human rights tribunals (CROA 2610, 1954, Re Molson’s Brewery (1979), 23 L.A.C. (2nd) 392; Re American Can Company of Canada and USWA Local 2881 (1981), 3 L.A.C. (3d) 283: and Re Shell Canada Products and Energy and Chemical Workers Union, Local 848 (1986), 26 L.A.C. (3d) 271; Re Entrop and Imperial Oil (1996), 27 C.H.R.R. D\210.)
With respect to the issue of discrimination counsel refers the Arbitrator to the decision of the Ontario Human Rights Board of Inquiry in Entrop. In that decision the tribunal concluded that discrimination was found in several aspects of the drug and alcohol policy of Imperial Oil there under consideration. Those included the requirement of self-disclosure for current or past substance abuse, drug testing by urinalysis, the reassignment of persons with substance abuse conditions and extensive requirements relating to the reinstatement of persons experiencing substance abuse. In respect of the CN policy, counsel submits that the requirement of self-disclosure for employees using prescription or other medications, as found at page 32 of the policy booklet, violates the anti-discrimination provisions of the Act. The same is true, counsel submits, with respect to the job reassignment requirements found within the policy at pages 21, 32, 34 and 39. Further, the drug and alcohol testing provisions, summarized at page 40 are challenged as being discriminatory, as well as the requirement of a continuing employment contract in cases of reinstatement, as outlined at pages 48 to 52 of the policy booklet.
Counsel submits that the Company cannot establish that the elements of its drug and alcohol policy constitute bona fide occupational requirements, which would justify what would otherwise be unlawful discrimination contrary to the Act. Noting that the BFOR defence requires demonstration that discrimination is reasonably necessary and bona fide, the Union submits that the conditions for establishing that defence are not made out. Most fundamentally, it argues, the Company has not established objective conditions, such as the significant presence of drug and alcohol problems in the workplace, or data causally connecting accidents or incidents to problems of worker impairment such as to justify the exception. In relation to the issue of good faith, the Union questions the Company’s refusal to negotiate a separate EFAP with the CAW, or to involve the Union in the development of a draft policy on drug and alcohol abuse in the workplace. On the whole, the Union submits that the Company has failed to bring itself within the BFOR defence.
By way of summary and conclusion, the Union submits the following points:
Firstly, as a matter of record, the Company notes that because of the broad nature of its drug and alcohol policy, which applies to all employees of the Company, including unionized employees in a number of bargaining units, all trade unions were invited to make submissions on an intervener basis in these proceedings. It notes that the only unions which chose to intervene are the United Transportation Union, which represents conductors, trainmen, yard foremen, yard helpers and yardmasters, and the International Brotherhood of Electrical Workers, representing signals employees, the latter group having in fact withdrawn during the proceedings. It is the Company’s position that all unions which had notice of these proceedings are foreclosed from otherwise challenging the Company’s policy.
In response to the CAW’s grievance the Company advances a three-fold position. Firstly it submits that its drug and alcohol policy is justifiable and is not an unreasonable exercise of management rights. The policy, it submits, does not violate the provisions of the CAW collective agreements and, lastly, any claim by the Union of a violation of the Canadian Human Rights Act is not arbitrable under the terms of its collective agreements. Alternatively, the Company submits that its policy does not, in any event, violate the Canadian Human Rights Act.
The Company maintains that there is nothing new in its determination to deal with drug and alcohol abuse in the workplace. It notes that the General Safety Rules promulgated on September 1, 1972, which applied to all employees, including employees in positions now represented by the CAW, clearly prohibited workplace substance abuse. Rule G of the 1972 General Safety Rules provided as follows:
The use of intoxicants or narcotics by employees subject to duty, or their possession or use while on duty, is prohibited.
The Company’s counsel notes that the rule so framed was in fact a restatement of a rule dating back to 1953 governing employees in the Motive Power and Car Shops, the substance of which was an incorporation of the long-standing UCOR Rule G.
Nor, counsel submits, is the obligation of employees to be vigilant to detect policy infractions by other employees particularly novel. In that regard counsel notes that for many years Rule E of the UCOR provided as follows:
Employees must render assistance in their power in carrying out the rules and special instructions and report promptly to the proper authority any violation thereof.
To similar effect UCOR General Rule L provided:
Employees must always be diligent to protect and must promptly report anything detrimental to the Company’s interests, and in case of danger to the Company’s property must unite to protect it.
The Company also stresses that for many years it has applied policies dealing with the reinstatement of employees found to have violated UCOR Rule G. For example, a Company policy dated October 12, 1976, generally referred to as the "Latimer letter", dealt with the conditions upon which persons discharged for Rule G violations might be returned to the workplace. Counsel notes that that policy, like the policy here under consideration, established that two years’ service would be a minimum requirement for reinstatement eligibility. Counsel notes, however, that over the years difficulty has arisen with respect to the consistent application of Company policies in the various regions of its operations, a fact which it maintains has contributed to the need for a single consistent national policy. The Company also prides itself on being among the first major employers in Canada to develop employee assistance programs, focused mainly on employees with alcohol and drug problems.
A focal event with respect to safety within CN was the tragic collision between a CN freight train and a VIA Rail passenger train near Hinton, Alberta on February 8, 1986 and the subsequent inquiry conducted by Mr. Justice René Foisy. Although the Commissioner’s findings did not conclude that alcohol abuse played a role in the collision, it was noted that the CN locomotive engineer involved had a history of alcohol problems. At p. 106 of his report Mr. Justice Foisy was critical of the fact that the Company had no "… systematic program of monitoring his condition when on the job", something the Commissioner clearly felt was required.
Counsel notes that post-Hinton a federal task force was established to consider the need for alcohol and drug screening among railway employees, and that, although no mandatory drug testing laws or regulations have been passed, the Railway Safety Act, R.S.C. 1985 (4th Suppl.) c. 32, did make provision, under section 18, for the Governor-in-Council to make regulations to declare certain railway positions to be safety-sensitive and to control or prohibit the abuse of alcohol or drugs by employees in such positions. Additionally, section 55 of the Act provided for amendments of the Criminal Code to deal with the operation of railway equipment while impaired. In that regard reference is made to sections 2, 214, 249-259 of the Criminal Code.
The Company notes that the Government of Canada opted not to deal with the issue of substance abuse in the relatively narrow context of railway operations, but preferred to consider the matter in the broader perspective of Canadian transportation generally. On March 16, 1990 then Minister of Transport Doug Lewis tabled in the House of Commons a strategy for the prevention of substance abuse in the transportation sector, the elements of which included post accident drug and alcohol testing, periodic testing, pre-employment testing, "for cause" testing and random testing.
Submissions from the transportation industry were heard by the Standing Committee on Transport. CN’s presentation noted to the committee that the Company had utilized pre-employment drug screening among job applicants since May of 1986. Those tests yielded a positive result at a rate of 12%. CN’s submission noted that similar testing had been performed for employees transferring to safety-sensitive positions, with a similar rate of 12% positive results.
Ultimately the Standing Committee’s report and recommendations favoured post accident testing, periodic testing, pre-employment testing, and "for cause" testing. The Standing Committee did not, however, recommend mandatory random testing for drugs and alcohol among employees in the transportation industry.
The Company also notes that the Canadian Rail Operating Rules, a regulation passed pursuant to the Railway Safety Act, introduced in 1990 in substitution of the previous Uniform Code of Operating Rules, specifically addressed the issue of workplace substance abuse. Rule G of the CROR reads as follows:
G. (a) The use of intoxicants or narcotics by employees subject to duty, or their possession or use while on duty, is prohibited.
(b) The use of mood altering agents by employees subject to duty, or their possession or use while on duty, is prohibited except as prescribed by a doctor.
(c) The use of drugs, medication or mood altering agents, including those prescribed by a doctor, which, in any way, will adversely affect their ability to work safely, by employees subject to duty, or on duty, is prohibited
(d) Employees must know and understand the possible effects of drugs, medication or mood altering agents, including those prescribed by a doctor, which, in any way, will adversely affect their ability to work safely.
The Company also notes that General Rule A of the CROR includes, in sub-paragraph (iii) the obligation of employees involved in the movement of trains to:
(iii) provide every possible assistance to ensure every Rule, Special Instruction and General Operating Instruction is complied with and shall report promptly to the proper authority any violation thereof;
Counsel for the Company notes that the CROR applies to CAW represented employees involved in operating equipment such as mobile cranes and hy-rail trucks, and heavy duty mechanics who are involved in the movement of equipment over the Company’s tracks.
Counsel for the Company also points out that the Company’s 1991 General Safety Rules include a number of provisions not unlike those found within the drug and alcohol policy. Included within section 1.1 of those rules is a requirement of employees to be aware of the effects of prescription or other drugs which they might be taking, and, among other things, to inform supervisors before beginning work if they are taking any medication which could affect their performance. Those rules have never, Counsel notes, been the subject of any objection or grievance by the CAW.
Counsel for the Company also stresses that in January of 1988 the Company introduced the Employee Assistance Program/Chemical Dependency, providing for both voluntary and mandatory referrals, treatment and monitoring. That program also included the possibility of termination of employment for employees who failed to cooperate. When the policy was revised in the form of the Employee Assistance Program policy implemented on March 27, 1990 the CAW was invited to discuss the amendment of the policy, but declined to do so. Counsel notes that the Company’s EFAP policy has, nevertheless, involved the participation of employees from the CAW bargaining unit over the years.
As evidence of its involvement with a number of trade unions in dealing with workplace drug and alcohol abuse problems the Company notes the joint Union/Management Agreement on the Control of Drug or Alcohol Abuse made with a number of unions, including the Brotherhood of Maintenance of Way Employees, the United Transportation Union, the International Brotherhood of Electrical Workers and the Brotherhood of Locomotive Engineers, in May of 1990. Included within that agreement is what has become known as the "Rule G By-Pass Agreement", an expanded version of an agreement which originated as the Great Lakes Special Agreement. The essence of the Rule G By-Pass Agreement is to allow for the non-disciplinary treatment of employees involved in substance abuse at work where certain conditions of disclosure are met.
The Company’s submission generally recounts its own concerns with respect to ensuring the medical fitness of all employees it considers to be safety-sensitive, in a manner that extends beyond the scope of Board Order O-9, issued under section 119(2) of the Canada Transportation Act, S.C. 1996 c. 10. In the Company’s view its legitimate concerns for the safe operation of its railway extend beyond the minimal requirements for audiometric and optometric examinations required for employees involved in the operation of trains. It relates, in detail not necessary for the purposes of this award, that it has been unsuccessful in attempting to negotiate an extension of the section of what it considers to be important safety initiatives beyond the scope of Board Order O-9 in negotiations with the CAW.
Counsel for the Company also stresses the historic context in which the issue of substance abuse testing has evolved. He notes that in the early 1990s Transport Canada actively considered and pursued possible legislation and the regulatory control of substance use in the transportation sector. Following the change of government in October of 1993 the new Minister of Transport, the Hon. Doug Young, advised industries that the government’s policy would be that employers should develop substance abuse programs on their own, having regard to their own particular needs. In that regard the Arbitrator’s attention is drawn to a letter from the Minister to the Company’s president dated December 23, 1994. Shortly thereafter, as of November of 1995, the Company became privatized, which gave rise to a duty towards a broad range of private shareholders.
The Company also relates that drug testing in fact had considerable currency within its operations prior to the implementation of the policy which is the subject of this grievance. Urinalysis was utilized, for example, in situations of pre-placement, reasonable cause, medical examinations, promotions and transfer, and reinstatement as well as EAP follow-ups. Its Counsel relates, however, that inconsistencies arose across the Company’s national operations with respect to drug testing practices, signalling the need for a single clear and comprehensive policy. Counsel also notes the recorded results of what the Company characterizes as drug and alcohol misuse in the years between 1993 and 1996, stressing that drug screens performed in 1995, for example, showed a 6.4% positive test rate in the East, and a 10% positive test rate in Western Canada. The Company also suggests that the CAW was well aware of its ongoing practices, and was itself involved in a number of documented reinstatement agreements which included the periodic drug testing of employees reinstated following discharge for substance abuse problems.
The Company also reviewed the record of arbitration awards in the Canadian Railway Office of Arbitration. At the time of the hearing some 2,760 cases had been heard by the office since its inception in 1965. The Company notes that 171 of those cases, some 6% of the entire caseload, involved problems associated with alleged alcohol and/or drug use by employees. Arbitration awards in the shopcraft sector of the railway industry, which does not fall under the CROA, shows some 26 of 360 awards, or approximately 7%, dealing with problems of alleged employee substance abuse. The Company’s counsel stresses that the foregoing figures are but the tip of the iceberg, and obviously do not represent those cases where discipline was not grieved, where grievances in relation to substance abuse problems were settled prior to arbitration, or where the matter never reached the disciplinary stage because of timely referral of the individual concerned to the Employee Assistance Program. The Company notes that in CROA 1703, the earliest award in the industry dealing with the issue of drug testing, having reviewed much of the scholarly literature in the field, the arbitrator commented:
According to one estimate a degree of substance abuse, whether drugs or alcohol, is present is some 10% of employees, a statistic which is said to obtain reliably in virtually all industries.
Part of the Company’s submission is to impress upon the Arbitrator that as a public carrier a railway is in a particularly onerous position with respect to ensuring safe operations. Apart from its own general duty of care to its customers, its employees and to the public at large, the Company is subject to a number of federal laws and regulations. It cites, for example, The Railway Freight and Passenger Train Brake Rules, The Railway Locomotive Inspection and Safety Rules, The Railway Freight Car Inspection and Safety Rules and The Railway Passenger Car Inspection and Safety Rules. The Company is also subject to environmental legislation, including the Canadian Environment Protection Act, R.S.C. 1985, (4th Suppl.) c. 16. Further, the Fisheries Act, R.S.C. 1985, c. F-14 contains provisions which are of concern to the Company as a carrier of hazardous goods, relating to criminal consequences and the liability of Company officers and the Company itself for violations of the Act involving the alteration, disruption or destruction of fish habitats. Noting that section 78.6 of the Act provides for a due diligence defence, the Company suggests that initiatives such as its substance abuse policy would be a significant element in advancing such a defence, and conversely, the Company would risk still greater liability should it be unable to point to serious systematic efforts at detecting and preventing substance abuse in the workplace. As noted above, that theme clearly had its place in the Foisy Report following the Hinton collision in 1986.
The Company also notes that the decision of the Supreme Court of Canada in Canadian Pacific v Her Majesty the Queen in Right of Ontario (1995), S.C.R. 1031 confirmed that a railway, which is a federally regulated public carrier, is properly subject to provincial environmental regulations, as well as federal laws. Additionally, counsel for the Company notes the provisions of the Transportation of Dangerous Goods Act, S.C. 1992, c. 34, as amended by S.C. 1994 c. 26, and regulations thereunder, which places special obligations upon any company involved in the transportation of hazardous goods. The Act, the Company points out, involves relatively complex and detailed documentation requirements, frequently to be carried out by employees of the railway with a high degree of care and accuracy. Sections 38 and 39 provide for the prosecution of a company and its officers for violations of the Act, including the acts of employees or agents. In that circumstance, in accordance with section 40 of the Act, it is open to a company to advance a due diligence defence. That section provides:
Section 40 – Defence – No person shall be found guilty of an offence if it is established that the person took all reasonable measures to comply with this act or to prevent the commission of the offence.
Again, in that context, the Company stresses the value, indeed the necessity, of being able to demonstrate that it maintains a systematic policy of vigilance and care with respect to the avoidance of substance abuse among employees whose duties are integral to the operation of its railway.
Additionally, counsel for the Company submits that CN is required to comply with U.S. legislation in all of its trans-border operations. That includes part 219 of the Federal Railroad Administration Regulations, promulgated in February of 1994. The American regulations provide, among other things, for pre-employment, post incident, reasonable cause and random alcohol and drug testing for certain employees involved in the operation, dispatching and signaling of trains. The Company also notes that trucking companies have been made subject to the Federal Highways Administration requirements in the U.S. to the effect that Canadian companies involved in trans-border transportation must maintain comprehensive drug testing programs, including random drug testing. Its counsel notes that in its annual report for 1997 the Canadian Human Rights Commission tacitly endorsed the requirement, insofar as it applies to truckers required to operate within the United States.
Additionally, counsel for the Company notes that the Canada Labour Code, R.S.C. 1985 c. L-2, as amended, provides, in section 124:
Every employer shall ensure that the safety and health at work of every person employed by the employer is protected.
Counsel submits that that statutory obligation is also reflected within the common law duty of care, noting that the Courts have been prepared to find contributory negligence in circumstances of alcohol abuse resulting in the injury of an employee. In that regard reference is made to the decision of the Supreme Court of British Columbia in Jacobsen v Nike Canada Ltd. (1996), 133 D.L.R. (4th) 377.
Counsel for the Company relates that the myriad of federal and provincial regulatory obligations which the Company is bound to honour, as well as the inconsistencies which it found in its own patchwork policy governing workplace substance abuse, administered in varying ways in different locations across Canada, ultimately prompted a comprehensive review of the problem of workplace substance abuse. That led to the development of a uniform policy, an effort initially undertaken in September of 1996 by the establishment of a policy development team comprised of a number of individuals drawn from the Company’s Safety, Operations, Human Resources, Labour Relations, Law, Employee and Family Assistance, Occupational Health, Communications and Police arms. The Company further engaged policy experts to assist it in its efforts, including Barbara Butler and Associates, Inc., a management consultant firm with substantial experience and expertise in workplace drug and alcohol program development. The Company’s submission relates in extensive detail the various steps and aspects of its preparatory work in the development of its drug and alcohol policy. It is fair to say that its efforts in that regard were extensive and are, in the Arbitrator’s view, impressive. Whatever one may think of the merits of the various parts of the Company’s policy, it clearly was not improvised on the back of an envelope.
As the final comment in its background submission, the Company stresses that although the Union challenges through this grievance the drug and alcohol testing components of the policy, the policy is itself much more than that. Its counsel submits that it is important to appreciate that the policy has a number of components beyond drug and alcohol testing, and was conceived as being complementary to, and not in substitution of, existing programs, and policies, including progressive discipline and the EFAP.
The Company’s submission turns next to the legal arguments in support of its policy. Firstly, it rejects the first approach argued by the CAW, which is to the effect that the Company cannot require employees to undergo drug and alcohol testing without either statutory authority to do so, or consent. As noted above, the Union’s position in that regard is founded on the reasoning of Arbitrator Swan in Re Canada Post Corporation and C.U.P.W. (1990), 10 L.A.C. (4th) 361. Counsel for the Company argues that the Swan approach, which notably did not arise in a drug testing context, but rather in a grievance relating to searches of the person and personal effects of employees, has not found a general following in the subsequent Canadian arbitral jurisprudence. Counsel submits that the approach which has received more general application is one generally acknowledged as the "balancing of interests test", reflected in a number of reported awards. Counsel submits that the first step in the approach to any employer policy or set of rules is general conformity with the longstanding concepts articulated in Re Lumber and Sawmill Workers, Local 2537 and KVP Co. (1965), 16 L.A.C. 73 (Robinson). Among the standards established in that case, and generally accepted over the years, is the principle that rules established by an employer must not be unreasonable. Counsel also appears to accept the notion, perhaps implicit in the concept of reasonableness, that there must be some justification for an employer policy, a principle reflected in the decision of Arbitrator McAlpine in the Esso Petroleum Canada case, cited above.
Counsel for the Company submits that the approach of balancing the privacy interests of employees with the legitimate business interests of employers has clearly evolved in the jurisprudence, most clearly from cases dealing with the employer’s right to search the lockers, lunch boxes, handbags, vehicles, or other personal effects of employees. By way of example, counsel cites the decision of Arbitrator Chertkow in Re Lornex Mining Corporation Ltd. and United Steelworkers, Local 7619 (1983), 14 L.A.C. (3d) 169, an award which relied extensively on the earlier decisions of Arbitrator P.C. Picher in Re University Hospital and London & District Service Workers’ Union, Local 220 (1981), 28 L.A.C. (2nd) 294. Further reference to the search cases is made by the employer by citing the decision of Arbitrator Davis in Re Algoma Steel Corporation Ltd. and United Steelworkers, Local 2251 (1984) 17 L.A.C. (3d) 172 and the decision of Arbitrator Beatty in Re Glenbow–Alberta Institute and C.U.P.E., Local 1645 (1988) 3 L.A.C. (4th) 127. In the latter case, at p. 144 Arbitrator Beatty summarized the general jurisprudence as follows:
Accepting that there must be compelling reasons for an employer being entitled to infringe upon an employee’s fundamental right of privacy, the test which appears to have evolved through the arbitration cases is one of "balancing interests" and "reasonableness". The issue in the present case may be stated: Can the invasion of the employees’ privacy be considered, on an objective "balancing of interests" test, as a reasonable and justifiable interference with the individual’s right of privacy of property?
Among the principles noted by Arbitrator Beatty, referring in part to the award of Arbitrator Chertkow, is a recognition that searches should not be random or arbitrary, but be applied to all employees in a manner that is fair and consistent.
The Company also relies extensively on a decision of Arbitrator Munroe in Re Fraser Valley Milk Producers Co-operative Assn. (Dairy Land) and I.A.M. District Lodge 250 (1989), 9 L.A.C. (4th) 376. In that case the union challenged the employer dairy’s requirement that employees undergo annual medical examinations for certification related to the safety of milk products. The arbitrator adopted the balancing of interests approach and commented, in part, at pp. 385-86:
In our view, this high degree of public regulation directed as it is to precisely the same objective as the disputed rule, and holding out the threat of business closure if appropriate standards are not maintained, is a factor properly considered in the balancing exercise. Very simply, the employer is entitled to make rules which in its reasoned judgement, and without being unduly aggressive, are required to protect its interests within that regulatory milieu. …
… At some stage, the medical intrusions and inconveniences suffered by the employees would balance off the legitimate interests of the employer, and the rule would be found to be unreasonable. Indeed, we think that greater-than-annual frequency could well result in such a finding. On balance, then, the rule cannot be characterized as unreasonable just because the application of the rule does not fully guarantee the desired objective.
As can be seen from the foregoing, part of the reasoning of Arbitrator Munroe was to confirm that it is appropriate for an employer to have regard to the over-arching requirements of governmental law and regulation in respect of its industry as a factor in balancing the employer’s interests against the privacy rights of the employees affected. Additionally, as noted in the second paragraph quoted, the employer need not demonstrate that its precautionary approaches are absolutely failsafe, as an element of justification.
The Company also stresses a prior decision of this Arbitrator, being one of the earliest in the reported jurisprudence dealing with the issue of drug testing in the safety-sensitive context of railway operations. In Re Canadian Pacific Ltd. and United Transportation Union (1987) 31 L.A.C. (3d) 179 (M.G. Picher) (CROA 1703) the facts disclosed that a conductor employed by CP Rail was charged with the cultivation and possession of some 104 marijuana plants. The employee declined to undergo a drug test when asked to do so by the railway, and was dismissed following his refusal to comply. Counsel for the Company notes that in that circumstance the arbitrator opted for a balancing of interests approach, giving considerable weight to the public safety dimension. At p. 186-87 the following comments appear:
What guidance do the foregoing considerations provide in the instant case? It appears to the Arbitrator that a number of useful principles emerge. The first is that as an employer charged with the safe operation of a railroad, the Company has a particular obligation to ensure that those employees responsible for the movement of trains perform their duties unimpaired by the effects of drugs. To that end the Company must exert vigilance and may, where reasonable justification is demonstrated, require an employee to submit to a drug test. Any such test must, however, meet rigorous standards from the stand-point of the equipment, the procedure and the qualifications and care of the technician responsible for it. The result of a drug test is nothing more than a form of evidence. Like any evidence, its reliability is subject to challenge, and an employer seeking to rely on its results will, in any subsequent dispute, bear the burden of establishing, on the balance of probabilities, that the result is correct. The refusal by an employee to submit to such a test, in circumstances where the employer has reasonable and probable grounds to suspect drug use and a risk of impairment, may leave the employee liable to removal from service. It is simply incompatible with the obligations of a public carrier to its customers, employees and the public at large, to place any responsibility for the movement of trains in the hands of an employee whom it has reasonable grounds to suspect is either drug-dependent or drug-impaired. In addition to attracting discipline, the refusal of an employee to undergo a drug test in appropriate circumstances may leave that employee vulnerable to adverse inferences respecting his or her impairment or involvement with drugs at the time of the refusal. On the other hand, it is not within the legitimate business purposes of an employer, including a railroad, to encroach on the privacy and dignity of its employees by subjecting them to random and speculative drug testing. However, where good and sufficient grounds for administering a drug test do exist, the employee who refuses to submit to such a test does so at his or her own peril.
Counsel further cites the decision of Arbitrator Gail Brent in Re Provincial-American Truck Transporters and Teamsters Union, Local 880 (1991), 18 L.A.C. (4th) 412, an award which he submits endorses the Canadian Pacific case, although in that instance the grievance against drug testing succeeded on the basis that the company produced no evidence whatsoever of a drug or alcohol problem in the workplace which justified the employer’s policy.
In support of its view that the balancing of interests approach is the proper way to proceed, the Company relies extensively on the decision of Arbitrator McAlpine in the Esso Petroleum Canada I.O.C.A. Refinery award, cited above by the Union. Counsel stresses that while in that award Arbitrator McAlpine did find that there was insufficient justification for the sweeping policy adopted by the employer, including random drug testing, the award did nevertheless confirm the appropriateness and legality of a number of aspects of the substance abuse policy under consideration. Counsel stresses that in the context of the operations of a petroleum refinery the arbitrator endorsed the employer’s determinations with respect to the scope of safety-sensitive positions, the legitimacy of its policies prohibiting the use or possession of drugs and alcohol or the misuse of prescribed medications and, perhaps most significantly, the mandatory testing of employees for reasonable and probable cause, or after a work accident, incident or near miss. Counsel for the Company notes that Arbitrator McAlpine did uphold the requirement of Esso’s policy for employees with current substance abuse problems to self-declare to management, although past abuse problems or convictions did not justify an obligation of self-declaration. In addition the board there found that a three year after care program was reasonable for persons properly found to be in violation of the policy, including the possibility of random drug testing as part of the rehabilitation program. Notably, in that award Arbitrator McAlpine struck down the part of the Esso policy mandating random drug testing for all safety-sensitive employees, and concluded that mandatory medical examinations, including blood tests and screening by the Company’s doctor were not supportable, although examinations by an employee’s own physician were.
Having reviewed the jurisprudence counsel for the Company argues that all of the elements advanced by arbitrators as being necessary for the justification of a substance abuse policy are established on the evidence in the case at hand. Firstly, he asserts that there can be little doubt but that substance use and abuse have long been recognized as a problem within the railway industry, and the Company’s operations in particular. That is, he submits, in part reflected by the Union’s own persistent efforts at negotiating a separate substance abuse policy, apart from the EFAP plan negotiated with the other unions, for its own bargaining unit members. On the basis of the statistics which it tabled in evidence, as well as the numerous arbitration awards within the industry dealing with drug and alcohol related problems, CN submits that there can be little doubt but that it has demonstrated an objective basis for its concern as a employer responsible for the safe operations of a railway on a national scale. Counsel stresses that the patchwork approach of the Company’s prior policies, with resulting inconsistencies from region to region and from case to case, necessitated a comprehensive and rational effort resulting in a single consistent and comprehensive policy of general application. Counsel submits that the justification for the policy is well expressed at page 6 of the guidebook, a passage reproduced earlier in this award. In that regard reference is made to the evolving legal and ethical obligations for which the employer bears responsibility, the lessons of a series of industrial accidents in which the abuse of alcohol and drugs has been documented, growing public awareness and concern for vigilance in respect of substance abuse among major employers in safety-sensitive industries and a recognition that previous policies and programs were not sufficiently inclusive and consistent across the Company’s workforce. In further support of its initiative counsel cites a number of factors discussed at greater length above, including the risk of civil and criminal liability which it faces under federal and provincial regulatory schemes, its potential liability at common law for negligence and, finally, the fact that it has legitimate business interests, as a Company whose shares are publicly traded, to ensure that both the consuming and investing public can have confidence that it operates with the fullest diligence and responsibility in all matters relating to safety.
Counsel for the Company next turns to what he characterizes as the reasonableness of the policy, including its reasonableness as applied to the shopcraft context which involves employees represented by the CAW. In that regard he notes that a number of awards of arbitrators within the railway industry have expressly acknowledged the safety-sensitive nature of tasks performed by shopcraft employees represented by the Union. For example, counsel cites SHP 102, a decision of Arbitrator Weatherill which found that a boilermaker at the Transcona Shop was "… employed as a tradesman in the inspection and repair of diesel locomotives, and the importance of being in a fit condition – both from the point of view of safety in the workplace and that of quality at work – is obvious." It was there found by Arbitrator Weatherill that the grievor’s inebriation by the consumption of alcohol was justification for a serious disciplinary penalty. Similar reference is made to SHP 157, SHP 159, SHP 246, and SHP 378. Reference is also made to arbitrations involving other industrial settings, including the award of Arbitrator Swan in Re Canada Post Corp. and C.U.P.W. (Marini) (1987), 26 L.A.C. (3d) 403.
Counsel emphasizes that reasonable cause testing is at the heart of its drug and alcohol policy. He maintains that that concept has been repeatedly recognized as a legitimate means for an employer to exercise vigilance in a safety-sensitive industry. In that regard reference is again made to the decision of the arbitrator in the Canadian Pacific Ltd. case, as well as the decisions of Arbitrator Brent in Re Provincial-American Truck Transporters, Arbitrator McAlpine in Esso Petroleum, and the instant arbitrator in two other railway decisions: Re Canadian National Railway Company and United Transportation Union (1989), 6 L.A.C. (4th) 381 (M.G. Picher) and Re Canadian National Railway Company and United Transportation Union (1990) 11 L.A.C. (4th) 364 (M.G. Picher).
Counsel also submits that the post-reinstatement or return after treatment provisions of the Company’s policy, including the possibility of random drug and alcohol testing, are reasonable within that context, and have been recognized as such by arbitrators. Indeed, he submits that the Union itself has negotiated a number of such arrangements with respect to the reinstatement and rehabilitation of members of its own bargaining units. He reiterates that the similar provisions within the policy of Esso Petroleum reviewed by Arbitrator McAlpine were upheld, subject to a two year limitation.
Counsel next addresses the Union’s objection to that part of the policy which would involve the drug and alcohol testing of employees returning after a leave of absence, or after reinstatement and re-assignment to a risk-sensitive position. He emphasizes that the language of the policy utilizes the word "may" with respect to the requirement of an employee to pass a drug test after a leave of absence of six months or more, as reflected at page 44 of the Policy Guidebook. Counsel stresses that it is the intention of the Company, and its practice, to make such requests only of individuals whose absence from the workplace has been drug or alcohol related. In any event, counsel submits, that part of the policy is generally consistent with the right of the employer to require periodic medical examinations to confirm the fitness of employees to perform their work, a concept well endorsed in a number of arbitral awards.
Counsel also rejects the suggestion of the CAW that the "suspicion standard" reflected at page 34 of the policy handbook is improper or in violation of any collective agreement or other legal obligation. Counsel argues that the language, which provides that a supervisor with a suspicion of a breach of the policy should take appropriate action is merely a re-statement, albeit in different words, of the reasonable cause standard of the policy, a standard which has been sustained in a number of prior arbitral awards, including Esso Petroleum Canada and Canadian Pacific Limited, cited above, as well as the award of Arbitrator MacKiegan in Re National Gypsum Canada Limited and I.U.O.E., Locals 721 and 721B (1997), 67 L.A.C. (4th) 360. In the latter case the arbitrator confirmed the entitlement of the employer to require a drug test where the Company has "… met the burden of a reasonable suspicion of impairment.", noting that where drug use is concerned objective detection of impairment may sometimes be relatively difficult, as compared to the more recognizable outward signs of impairment from alcohol. Against that jurisprudential background, counsel for the Company submits that the concepts of "knowledge" and "suspicion" are different, and legitimate, concepts for the purposes of instructing supervisors in their obligations under the policy. On that basis the Company submits that the allusion to "suspicion" as a basis for requiring an employee to undergo a drug or alcohol test is not unreasonable, as it is understood in the larger context of reasonable cause for drug and alcohol testing.
The Company also takes issue with the Union’s objection to that part of the policy, reflected at page 33 of the handbook, whereby supervisors are instructed to confront employees about performance problems where they have grounds to believe that performance difficulties may be health related, and may request the employee to obtain medical assessment from Medcan, or assistance through the EFAP. Counsel for the Company suggests that it is absurd for the Union to object to that part of the policy, arguing that it would be counter-productive in the extreme to allow an employee to be immune from any supervisory concern or investigation, particularly where the employee himself or herself might later invoke medical justification as a response to the employer’s attempt to apply discipline to correct perceived performance difficulties. Counsel suggests that early disclosure, including disclosure at a supervisor’s initiative, are entirely reasonable and appropriate. In that regard he cites a number of authorities, including the decision of the British Columbia Court of Appeal in Canadian Airlines International Ltd. v C.A.L.P.A. (1997), 39 B.C.L.R. 131 (C.A.). In that case, which involved the discharge of an airline pilot for his involvement in substance abuse, the court stressed that the employer’s rehabilitation program was predicated on the early and voluntary assumption of responsibility by an employee for treatment of his or her substance abuse problem before it matures into an incident of serious misconduct. Against that jurisprudential context, counsel for the Company submits that it is entirely appropriate for supervisors and employees alike to exercise vigilance in reasonably attempting to determine whether performance problems are health related, albeit within the context of the respect for privacy inherent in the medical or EFAP referrals which are there contemplated.
The Company then replies to a major aspect of the Union’s argument against drug and alcohol testing. As noted above, the Union stresses that drug testing by urinalysis gives no reliable indication with respect to the impairment of the employee tested. Similarly, the Union takes issue with the blood alcohol cut-off level of .02 BAC contained within the policy. In response the Company maintains that the Union’s position misses the point, stressing that the policy is not about precise detection of impairment, but about the reduction of risk, a legitimate employer interest. In support of its argument that the risk approach is appropriate, the Company refers the Arbitrator to the decision of Arbitrator Hope in Canadian Airlines International Ltd. and C.A.L.P.A., an award dated February 11, 1994. In that award the arbitrator confirmed as valid a rule requiring that pilots avoid the use of alcohol for twelve hours prior to reporting for duty, even though that rule does not strictly establish that an employee who does not observe it is necessarily impaired. In coming to that conclusion Arbitrator Hope commented:
The seriousness of an infraction of such rules is not to be measured in terms of the amount of alcohol consumed and its implications with respect to actual impairment. The offence is to be found in the willingness of a pilot to deliberately ignore an extremely important safety regulation. In addition, there are other strong corporate reasons for enforcing such rules as were alluded to by the Employer. In particular, where a connection is made, members of the public associate pilots with the Employer and any consumption of alcohol on their part in the period prior to their reporting for duty has a strong potential to compromise the Employer’s reputation.
In respect of risk analysis reference is also made to a number of American arbitration awards including Re Ingalls Shipbuilding (1992), 99 L.A. 783 (Shieber); Exxon Pipe Company (1997), 109 L.A. 51 (Abercrombie); and Frito-Lay Inc. (Frankfort Plant) 98-1 ARB. para. 5068 (Heekin).
In defence of the cut-off level of 20 mg/100 ml as the appropriate BAC level for risk-sensitive employees, counsel for the Company refers, in part, to the report of Dr. Mark Fillmore, the Union’s expert, which contains the following analysis at p. 3, dealing with the impact of alcohol on complex work activities referred to as "divided attention tasks":
Research has shown that performance of these tasks is most vulnerable to the disruptive influence of alcohol. However, despite this susceptibility there is no reliable evidence that BACs as low as 20 mg/100 ml can impair performance on a divided attention task. One review does claim that low BACs of 25 mg/100 ml can impair the ability to divide attention (e.g. Linnoila et al., 1986). However, no specific research studies to support that conclusion were cited in the review. Other reports conclude that impairment of divided attention task occurs at a BAC of 40 mg/100 ml (National Institute on Alcohol Abuse and Alcoholism, 1994). Still other reviews report impairment of divided attention at BACs in the range of 50-80 mg/100 ml (Mitchell 1985). Thus, although the ability to efficiently divide attention may be highly vulnerable to impairment from alcohol, there is no reliable evidence that BACs as low as 20 mg/100 ml impair this ability.
Counsel for the Company submits that while Dr. Fillmore asserts that there is no conclusive evidence of impairment at BAC levels below the 50 mg/100 ml level, it is equally evident that there is no conclusive evidence that a BAC of 20 mg/100 ml does not in fact impair the performance of an employee involved in a task which requires divided attention. Counsel further notes that some provinces have opted for a .05 BAC standard for the purposes of administering roadside driver suspensions. Additionally, the Company expresses concern, having regard to certain of the expert evidence suggesting that the current levels of THC content in marijuana are substantially higher than may have been the case years ago. Its counsel stresses that with respect to illicit drugs generally obtained on the street there can be no reliable prediction as to the concentration and strength of the substances ingested.
Nor does the Company accept the suggestion of the Union that the provisions of the policy which require employees to cooperate in any Company investigation into a policy violation are particularly novel or different, much less a coercive attempt to force employees to become informers against their co-workers. He submits that that aspect of the policy is no different from many other rules within the industry which have, for years, imposed a standard of general vigilance upon all employees with respect to their own activities as well as the activities of others, insofar as safety is concerned. By way of example, reference is may to rule 6 of the Rule G By-Pass Agreement, negotiated with other trade unions, which expressly provides that employees aware of a substance abuse violation who fail to report or take action upon it are subject to investigation and possible discipline for their own inaction. Against that background, counsel submits, there can be nothing unreasonable about the expectation that employees should exercise vigilance to ensure that their peers respect essential safety rules.
The Company further asserts that its policy to require the negotiation of a continuing employment contract for persons who have violated the drug and alcohol policy is entirely appropriate. Counsel submits that the Company intends to seek the intervention of the bargaining agent in making any continuing employment contract, as has been the policy in the past. Counsel stresses that in fact such contracts are best understood as a form of accommodation to employees with substance abuse problems and should be encouraged as such. He further refers to the arbitral endorsement of such agreements in the decision of Arbitrator Weatherill in Canada Post Corporation and C.U.P.W. (1988) 1 L.A.C. (4th) 138.
As to the reinstatement guidelines contained within the policy, the Company’s counsel submits that the requirement of a minimum of two years’ compensated service prior to dismissal as a condition for reinstatement under the guidelines, and the condition that there be no outstanding disputes with respect to the employee’s dismissal are not unreasonable requirements. Counsel notes that the first condition is not inconsistent with a number of Company-Union understandings establishing similar threshold requirements for various benefits such as apply in lay-offs, relocation and severance situations. Nor does counsel agree with the suggestion that it is anything less than reasonable to predicate an employee’s reinstatement upon the resolution of any outstanding related grievance. Nor does the Company agree with the Union’s suggestion that in no circumstances can off duty conduct become an area of legitimate employer concern, subject of course to establishing that such conduct has clear implication for the employer and the workplace, a concept which counsel maintains is well established in the arbitral jurisprudence.
Counsel for the Company further submits that the Arbitrator should give no consideration to the submission of the Union that the policy involves the unjust treatment of bargaining unit employees. He stresses the jurisprudence of the CROA, confirmed by the courts, that provisions such as article 27.6.7 of the instant collective agreement contemplate that general allegations of "unjust treatment" are to be confined to the grievance procedure, and do not extent to the arbitration process. In that regard reference is made to a number of prior awards, including CROA 2939. Finally, as regards the Union’s allegation that the Company’s policy violates the collective agreement, counsel for the Company stresses that the Arbitrator’s role should involve a substantial degree of deference to the judgement of the employer, particularly where the issues dealt with allow for a relatively wide scope of opinion within a larger framework of reasonableness and good faith, concepts which he submits are amply demonstrated in the overall intent of the Company’s policy. In that regard he notes that the measures adopted by the Company have, as a matter of record, been considered reasonable by government ministries and the members of the Standing Committee on Transport of the House of Commons.
Additionally, the Company submits that the arguments advanced by the CAW with respect to the alleged violation of particular articles of its collective agreement cannot stand. Counsel submits that the Union’s allegation that article 6.27 of the collective agreement, which deals with the requirement of a driver’s test and medical examination for car mechanics who may be required to operate Company motor vehicles is far from intended as an exhaustive code with respect to the Company’s legitimate interests in requiring the medical examination of its employees, including drug and alcohol testing. In that regard counsel refers the Arbitrator to the decision of Ms. Brent in Re Provincial-American Truck Transporters, where a similar submission based on licensing examination provisions within the collective agreement was rejected. Counsel also refers to other awards where collective agreement provisions respecting medical and licensing requirements for drivers has not been viewed as exhaustive of the employer’s prerogatives (see, CROA 2649; Re Royal Alexandra Hospital and U.N.A., Loc. 33 (1990) 10 L.A.C. (4th) 173 (Ponak)). Counsel further submits that there is a substantial history of the Company requiring medical examinations for reasons entirely unrelated to article 6.27 of the collective agreement, and that there is simply no basis to sustain the Union’s argument that that article should be construed as a limitation upon the employer to require medical examinations of its employees.
Counsel similarly challenges the Union’s submission that the policy is unduly harsh as it might apply to employees who are on call, or work on a standby basis. He argues that the fact that some such employees may become easily liable to infractions of the policy, to the extent that they may be called to work with relatively little advance notice, does not of itself constitute prejudice to the individual in the legal sense, any more than performing shift work may be viewed as unduly disruptive of an individual’s normal life. He submits that reference by the Union to violations of articles 9 and 57 of the collective agreement, as they apply to employees who work on an on-call basis is entirely without foundation. Similarly counsel submits that the provisions of the policy handbook which suggest that policy violations will result in dismissal are not in violation of the procedural and just cause provisions of the collective agreements, including articles which deal with the requirement of a fair and impartial investigation prior to the assessment of discipline. In that regard counsel draws to the Arbitrator’s attention the language found at page 38 of the policy guidebook which confirms that:
In all situations, an investigation will be conducted and documented (in accordance with collective agreements, if applicable) to verify that a policy violation has occurred before corrective action is taken.
Counsel submits that by its own terms the Company’s policy contemplates full respect for the provisions of the collective agreements in the disciplinary enforcement of the policy.
The next submission by the Company deals with the CAW’s allegation that the policy violates Canadian human rights law. The Company’s first position with respect to the human rights issue is that the Arbitrator is without jurisdiction to interpret and apply external legislation, such as the Canadian Human Rights Act, R.S.C. 1985 c. H-6. At most, in the Company’s submission, the jurisprudence would acknowledge that an arbitrator may apply external legislation where it is demonstrated that the collective agreement deals with the issue in dispute. In that regard the Company cites Haldimand-Norfolk Police Services Board and Haldimand-Norfolk Police Assn. (1993) 36 L.A.C. (4th) 245 (Jackson). In the Company’s submission the human rights dispute raised by the Union does not arise out of the collective agreement, and therefore matters relating to the Canadian Human Rights Act are not properly to be adjudicated in these proceedings. In that regard counsel stresses that the collective agreement does not contain a "non-discrimination" clause which could arguably import the principles of human rights legislation into the collective agreement.
The Company nevertheless deals extensively with the human rights submissions made by the Union through a reply brief separately dedicated to that issue, although it holds to its primary position that the Arbitrator’s jurisdiction in these proceedings must flow from the collective agreement, and further submits that recent amendments to the Canada Labour Code which arguably broaden the jurisdiction of arbitrators to deal with employment related statutes has no application in these proceedings, as the dispute arose prior to the amendment of the Code by Bill C-19. The alternative position of the Company is argued, nevertheless, as a response to the submission of the CAW to the effect that inconsistency with any provisions of the Canadian Human Rights Act within all or part of the Company’s drug and alcohol policy would be sufficient to establish that they are unreasonable, and therefore beyond the prerogatives of management’s authority to set rules in accordance with the KVP award.
Central to the Company’s response on this aspect of the grievance is the bona fide occupational requirement (BFOR) defence found within section 15(a) of the Canadian Human Rights Act which provides as follows:
15. [Exceptions] It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.
Counsel for the Company also stresses that the concept of a perceived disability as a protected status is found in the Ontario Human Rights Code, at section 10(1)(a), but is not similarly defined or included within the Canadian Human Rights Act, the federal statute which governs the Company’s operations. In any event, and most fundamentally, the Company submits that nothing within its policy in fact violates any part of the Canadian Human Rights Act.
Counsel for the Company stresses that the Company’s policy is aimed at detecting and preventing drug use, and does not specifically discriminate on the basis of drug dependence, a concept which must be distinguished from the mere use of drugs or alcohol. In that regard reference is made to a number of human rights cases, including Vermette v Canadian Broadcasting Corp. (1994), 28 C.H.R.R. D/89; Canada Human Rights Comm. v Canadian Broadcasting Corp. (1996), 28 C.H.R.R. D/139; Canadian Civil Liberties Assn. V Toronto Dominion Bank (1994), 22 C.H.R.R. D/301, reversed in part by Canadian Human Rights Comm. v Toronto Dominion Bank (1996), 112 F.T.R. 127 (Fed. Ct.). Counsel notes that the jurisprudence indicates that for an employer to invoke the BFOR defence it must establish that the policy in question was imposed in good faith and was reasonably necessary for the efficient and economic performance of the work in question. He notes that by "reasonably necessary" the cases mean that the policy must be rationally connected to the employment involved and that the rule does not place an undue burden on persons to whom it may apply. He adds that at the appeal level in the TD Bank case, (1998) 163 D.L.R. (4th) 193 (F.C.A.), two of the Federal Court of Appeal justices indicated, albeit in an obiter comment, that standards of accommodation may differ in safety-sensitive industries. In that regard the following passage in the decision of Mr. Justice MacDonald is cited:
I am of the view that … for any type of drug policy to reasonably accommodate affected employees, job performance must be considered (the exception may be safety-sensitive industries).
Nor does the Company accept the submission of the Union to the effect that the drug and alcohol policy is discriminatory as against drug and alcohol dependent employees, in that it impacts them more adversely than it might impact other employees. Counsel for the Company stresses that the policy is neutral on its face, and is made to apply to all employees equally. He argues that in any event it is clearly within the ambit of the BFOR defence that employees in a safety-sensitive industry such as a railway be free of the effects of drug and alcohol dependence while at work. Counsel notes that at a time when the concept of adverse effect discrimination was still operative the Federal Court of Appeal found in Niles v Canadian National Railway Co. (1992), 94 D.L.R. (4th) 3 that the Company properly accommodated an alcohol dependent employee to the point of undue hardship, prior to his discharge.
Counsel for the Company also submits that reliance by the Union on principles emerging from the Entrop decision, a human rights tribunal decision under the Ontario Human Rights Code, fails to appreciate certain critical distinctions between the policy of CN and those of Imperial Oil which were at issue in the Entrop case (Re Ontario Human Rights Commission and M. Entrop and Imperial Oil (1996) 27 C.H.R.R. D/210; Re Ontario Human Rights Commission and M. Entrop and Imperial Oil (1995) 23 C.H.R.R. D/196; Re Ontario Human Rights Commission and M. Entrop and Imperial Oil  O.J. No. 422 (Div. Ct.)). Counsel stresses that much of the discrimination found in the Entrop case stemmed from the extensive obligations of self-declaration placed upon employees with past substance abuse problems. Counsel emphasizes that there is no duty to self-declare either present or past substance abuse problems under CN’s policy. Further, the Company’s policy does not require employees on prescription medications to declare their condition or treatment to Company supervisors, as was the case with Imperial Oil’s policy. Rather, employees are directed to obtain the necessary information from their own physician or pharmacist, and in the case of uncertainty to deal with Medcan, a process which safeguards confidentiality.
Counsel submits that another central distinction between CN’s policy and parts of the Imperial Oil policy that were struck down is reflected in the fact that the policy of Imperial Oil provided expressly for random testing for alcohol and drugs for employees in safety-sensitive positions. Random drug testing forms no part of CN’s drug and alcohol policy. On the basis of the foregoing distinctions Counsel submits that the reliance of the CAW on the Entrop decision, and principles emerging from it, are misplaced, and that given the differences between the two policies the decision of the Ontario Board of Inquiry in Entrop is a questionable precedent for the purposes of the dispute at hand.
Further, Counsel stresses the content of the conclusions of the Board of Inquiry in Entrop (at paragraph 98 of interim decision no. 8) where the following appears:
3) The provisions of the Policy that provide for pre-employment and random drug testing are unlawful because the Respondent failed to prove that a positive test is correlated with impairment. Drug testing which takes place "for cause", "post-incident", upon "certification for safety-sensitive positions" and "post-reinstatement" may be permissible, but only if the Respondent can establish that the testing is necessary as one facet of a larger process of assessment of drug abuse.
4) The provisions of the Policy that provide for random alcohol testing are unlawful because the Respondent failed to prove that such screening is reasonably necessary to deter alcohol impairment on the job. Alcohol testing pursuant to "certification" for safety-sensitive positions and "post-reinstatement" may be permissible, but only if the Respondent can establish that testing is necessary as one facet of a larger process of assessment of alcohol abuse.
Counsel further notes that in the Esso Petroleum case Arbitrator McAlpine confirmed the appropriateness of post-reinstatement random drug testing, provided it was restricted to a two year period, and that upon an application for transfer into a safety-sensitive position it was permissible for the policy to require mandatory medical examinations which included blood tests and a medical screening form. In that regard the following reference is made to the decision of Arbitrator McAlpine at pp. 70-71:
The board accepts the employer’s position that one aspect of employee’s current fitness is whether or not the employee has a current substance abuse problem. With that end, the company is entitled to require their employees in safety-sensitive positions to undertake the blood test prescribed as part of the mandatory medical examination.
Finally, counsel for the Company submits that there is nothing inconsistent with the obligation of reasonable accommodation for employees with disabilities related to substance abuse and the Company’s policy. In that regard counsel notes that the obligation of accommodation only arises when an employer has reasonable grounds to believe that an employee suffers from a particular disability. There can, he submits, be no failure to accommodate the disability or a drug or alcohol dependent employee to the extent that the Company is not made aware of that condition, whether by the employee’s own disclosure or otherwise. Counsel further submits that accommodation is amply provided for in the Company’s operations, for example through the EFAP system, and the Rule G By-Pass agreement.
UNITED TRANSPORTATION UNION
The Arbitrator received extensive representations from counsel for the intervener UTU. As a point of distinction, counsel for the UTU does not dispute that the employees which that Union represents, all of whom are essentially involved in the operation or movement of trains, are generally considered to be employed in safety-sensitive positions, an issue substantially contested by the CAW with respect to its members within the shopcraft and maintenance trades, subject to some minor exceptions which may be dealt with at a later stage of the hearing. That said, counsel for the UTU endorses virtually all of the submissions made by the CAW with respect to the alleged unreasonableness and unduly intrusive nature of the Company’s drug and alcohol policy. A fundamental position advanced by the UTU is that the Company and Intervener have already negotiated agreements dealing with alcohol and drug problems in the workplace. Its counsel submits that the manner in which the Company promulgated its separate policy is in violation and disregard of those agreements.
Counsel for the UTU stresses that it obviously has concerns beyond those touching the interests of the CAW, and must bring to the Arbitrator’s attention parts of the collective agreements for which it is responsible in the representation of conductors and assistant conductors in yard and road service across Canada, as well as yard coordinators or yardmasters, all of whom are represented under collective agreements 4.16, 4.2 and 4.3. Counsel stresses that the Company’s policy, first disclosed to the intervener UTU as well as to other bargaining agents on February 27, 1997, is a unilateral document and not the result of any negotiation between the parties. The policy, which became effective some two weeks after notification to the unions, on March 15, 1997 was, counsel submits, prepared without the Company discussing with the Intervener whether there was in fact justification to implement such a policy, much less what the content of an appropriate policy might be. Counsel notes that the UTU’s Canadian Legislative Representative, Mr. T. Secord, immediately wrote to the Company on March 3, 1997 objecting to the unilateral introduction of so sweeping a policy, the justification of which was not, in the Intervener’s view, substantiated by any meaningful evidence. In the view of the UTU the Canadian railway industry was not plagued with a problem of drug and alcohol abuse which would justify so sweeping a policy, with intrusive mandatory drug and alcohol testing provisions. Mr. Secord recorded the UTU’s view that the Company’s policy in fact undermined the EFAP program as well as the Rule G By-Pass agreement, which had been worked out jointly between the Company and the UTU.
As part of its fundamental position the UTU submits that relations between itself and the Company have established that the issue of drug and alcohol abuse among employees of the Company within the Intervener’s bargaining units is a matter to be dealt with in the contractual framework. By way of example, the UTU stresses the negotiation with the Company of a joint union/management agreement on alcohol and/or drug abuse in early 1990. That agreement involved the establishment of a Senior Advisory Committee (SAC), a joint union and management committee to oversee the management of this issue in the workplace. Counsel submits that against that background the Company is estopped from unilaterally developing and promulgating its own drug and alcohol policy, in disregard of the agreements it has established with the UTU and other unions.
Counsel also stresses that the Company has an extensive degree of existing protections which call into question the necessity for its policy. He cites, in particular, Rule G of the Canadian Rail Operating Rules (CROR), a provision previously found in the Uniform Code of Operating Rules (UCOR), which has long prohibited the use or possession of drugs or alcohol by running trades employees while on duty or subject to duty. Counsel also cites the protections which the Company enjoys by virtue of the Railway Safety Act, the National Transportation Act, 1987 and relatively recent amendments to the Criminal Code of Canada (e.g. section 253) dealing with prohibitions of impairment in the operation of trains. Counsel notes that the Railway Safety Act also contains provisions which permit alcohol testing (section 41(7)).
Counsel questions the manner in which the policy has been implemented, particularly as relates to running trades employees. For example, he questions a letter issued by the Company on April 11, 1997 (General Notice No. 041) which effectively warned employees engaged in the operation of trains that the presence of any trace of illegal drugs or alcohol in the body, as found through testing, would be cause for immediate discharge. The same letter, counsel submits, placed employees on notice that they are under an obligation to self-report any charges against them for impaired driving, failure of which could also result in immediate discharge.
Counsel further challenges the basis upon which the policy can purport to stipulate that automatic dismissal will result from violations of the policy by employees occupying a risk-sensitive position. He submits that the policy so framed is inconsistent with the intervener’s collective agreements, which provide no specific penalty clauses for any particular disciplinary infraction. Counsel argues that to the extent that the collective agreements contemplate that employees are not to be disciplined or discharged save for just cause, the concept of automatic dismissal for failing a drug test which, of itself, does not establish the impairment of the employee while at work, is on its face a violation of the rights of employees under the collective agreements.
Counsel for the UTU also challenges a number of the specific provisions of the policy including the blanket imposition of random testing in follow-up circumstances and reinstatements, the failure of the policy to attempt any definition of reasonable cause for requiring a drug or alcohol test, for the guidance of supervisors, and what counsel characterizes as the arbitrary requirement of compelling an employee applying for a risk-sensitive position or returning from duty after a six month leave of absence to undergo drug or alcohol testing. He likewise objects to what appears to be language within the policy which suggests that the Company reserves the right to conduct either general or random searches for drugs and alcohol in the workplace.
Like counsel for the CAW, the UTU’s counsel takes substantial issue with the fact that the Company’s drug testing by urinalysis gives no indication as to whether an employee is impaired while on duty, a concept itself at odds with the normal just cause analysis. Similarly, he questions the .02 BAC cut-off level for alcohol as being similarly unrelated to any scientifically documented link to impairment, and therefore unreasonable.
Counsel for the UTU also questions the policy’s directive to employees to report their concerns with respect to prescription medications to Medcan, the Company’s contracted medical services provider. He submits that the policy vest authority in the contractor to impact an employee’s circumstances, including the possibility of changes in his or her work assignment, in a manner which constitutes an improper delegation of the Company’s own responsibilities.
Further, with respect to the specific circumstances of UTU members, counsel takes issue with that part of the policy which would hold that employees who are being compensated for being on call are considered to be on duty. He questions whether employees receiving wages while on a furlough board, or in receipt of spareboard guarantees are, by virtue of those provisions, to be prohibited from ever consuming alcohol. He refers to Appendix A of the Rule G By-Pass agreement and the decision of the arbitrator in CROA 557 as reflecting the understanding that being subject to duty is truly different from merely being on call. To that extent counsel submits that the policy would purport to amend the By-Pass agreement and the generally established interpretation of Rule G as it applies to employees subject to duty. Counsel also questions the extent to which the policy would purport to bind EFAP managers, EFAP committees and Safety and Health committees, as well as the extent to which the policy would purport to allow the Company to intrude into the off-duty activities of employees. Counsel further submits that the pre-employment testing of the policy would contravene provincial and federal human rights legislation, and that the conditions imposed post-reinstatement, including the possibility of testing of an employee for a period of up to five years is excessive, and well beyond anything endorsed in the jurisprudence. Counsel also questions whether the return to work contract for employees being treated under the By-Pass agreement or an EFAP agreement violates the concept of confidentiality essential to those agreements. He suggests, as well, that the prospect of long term drug testing could well discourage employees from coming forward and voluntarily participating in the EFAP. Most fundamentally, like counsel for the CAW, he submits that the concept of the continuing employment contract as presented in the policy is plainly inconsistent with the UTU’s right to represent its members in all aspects of their terms and conditions of employment.
Counsel also submits that the prerequisite to reinstatement that there be no outstanding dispute with respect to the discipline of the employee is itself a violation of the EFAP agreement, the terms of which provide that employees participating in the EFAP retain their normal rights of appeal through the grievance procedure under their collective agreement. Counsel maintains that that requirement, like the concept of the continuing contract of employment negotiated with the individual employee, is tantamount to tampering with the representation rights of the UTU and the collective agreement rights of the employees in question. In a similar vein, counsel submits that a number of the appendices of the policy, particularly dealing with the EFAP process and the By-Pass agreement essentially ignore the equal role of the unions in the By-Pass agreement and the overseeing of the EFAP process by the SAC.
In addition to their submissions in chief, each of the parties filed extensive reply submissions with the Arbitrator. To the extent that some of those submissions involved a reiteration of a party’s position in its original submission, they need not be extensively dealt with. Some fresh issues were raised in reply, however, and should be dealt with briefly.
In its reply the Company questions the basis upon which the UTU can seek rulings in these proceedings with respect to any specific provisions of its own collective agreements. In the Company’s view the grievance being between the CAW and the employer, the Intervener union should be limited to making representation as to the general question of the reasonableness of the policy, and arguably its lawfulness with respect to human rights legislation. He submits that this arbitration is not a forum to be closely analysing the specific provisions of collective agreements other than those of the CAW, whose grievance is before the Arbitrator.
The Company takes issue with the suggestion of the UTU that there was no attempt on the part of the Company to involve the Intervener union in the formulation of the policy. In that regard counsel refers to specific correspondence between the Company and the Intervener, as early as November of 1996, concerning the policy and inviting input from the Intervener’s officers. Counsel for the Company also notes that the Intervener union never grieved any aspect of the policy when it was introduced in March of 1997.
The Company also disputes the suggestion that its policy involves a repudiation of, or any inconsistency with, its other contractual obligations with the UTU, or any other union. Counsel submits that the Company continues to honour its obligations under the joint union-management agreement on the control of drug and/or alcohol abuse, and has received no grievances to the contrary. Counsel further questions the suggestion of the Intervener to the effect that the parties have contractually occupied the field. Making reference to a broad range of jurisprudence, he submits that contemporary reality recognizes that employers in a collective bargaining regime retain the implied right to make reasonable rules and establish reasonable policies with respect to drug and alcohol use or abuse in the workplace, and need not negotiate with a union the ability to do so, save as that ability may be foreclosed by any agreed provision of a collective agreement. In that regard he cites the decision of the arbitrator in the Canadian Pacific Limited award, cited above.
The Company’s counsel also takes issue with the argument of the CAW that conclusions should be drawn from the fact that the U.S. regulations concerning drug and alcohol testing do not extend beyond persons directly engaged in the operation of trains. He cites by way of example a number of internal policies of American railroads which extend drug testing, and in particular reasonable cause or reasonable suspicion testing, to all employees working around moving equipment or machinery or in other hazardous situations, including employees who inspect, maintain and repair machinery and equipment subject to federal safety guidelines.
Counsel for the Company also responds to the position of the CAW to the effect that the involvement of CN police within the policy renders it subject to the Canadian Charter of Rights and Freedoms. He notes that a number of prior awards of the Canadian Railway Office of Arbitration have acknowledged that CN police can operate in the dual role of peace officer and, on occasion, merely as Company officers furthering the application of a Company policy or rules. In that regard reference is made to CROA 279, 280, 669, 1558 and 2260. In the result, the Company submits that searches executed by CN police in furtherance of the policy, rather than as peace officers in a criminal investigation, involves only the action of Company agents or employees which does not fall under article 8 of the Canadian Charter of Rights and Freedoms. Alternatively, counsel submits that any searches and seizures properly conducted in furtherance of the policy by CN police would not be "unreasonable search and seizure" within the meaning of article 8, and would not in any event be in violation of the Charter, should it apply.
Similarly the Company submits that drug and alcohol tests conducted by CN police would not be unreasonable search and seizure in violation of article 8 of the Charter. Counsel submits that Charter jurisprudence has not ruled out the possibility of drug and alcohol tests being consistent with section 8 of the Charter, so long as they are properly administered with reference to appropriate standards and criteria. (Jackson v Joyceville Penitentiary , 3 C.F. 55(T.D.); Fieldhouse v Canada (1994), 91 C.C.C. (3d) 385 (B.C.S.C.), confirmed by Fieldhouse v Kent Institution (1995) 98 C.C.C. (3d) 207 (B.C.C.A.))
Among the reply submissions of the parties were representations with respect to more recent case law emerging during the course of the hearing of this arbitration. Among the cases discussed in that context were the decision of the Ontario Labour Relations Board, sitting as a board of arbitration in the construction industry, in Sarnia Cranes Limited,  O.L.R.B. Rep. May/June 479. In its supplemental reply submission the Company notes that, although the employer’s drug testing policy was struck down by the O.L.R.B. in Sarnia Cranes, part of the reasoning of the board suggested that a flaw within the policy was that the employees were not put on notice within the policy that discharge could result from a violation of the policy’s rules. Harkening to the KVP award, the board expressly stated that it is incumbent upon an employer to state in the policy document or elsewhere, in clear terms, the consequence that might flow from a violation of the policy. Counsel for the employer makes reference to those passages in response to the criticism of counsel for the CAW and the UTU to the effect that the automatic discharge provisions are inconsistent with the collective agreements. The Company submits that they are, on the contrary, consistent with the requirements of reasonable clarity mandated in KVP and confirmed in Sarnia Cranes.
Counsel for the Company also questions the CAW’s use of the recent decision of Arbitrator Swan in Re Nav Canada and C.A.T.C.A. (Medical Examinations) (1998) 74 L.A.C. (4th) 163, an award in which Arbitrator Swan was compelled to rule upon the employer’s policy concerning medical examinations for air traffic controllers. Counsel stresses that Mr. Swan, characterized as "the consensual authority threshold advocate in the searches cases" readily resorted to a balancing of interests test in the NavCan case where safety-sensitive duties and responsibilities were very much at issue. He notes the following passage from Arbitrator Swan’s award at pp. 181-85:
I do not intend to review in great detail all of the cases presented. Rather, I think that there are two main propositions, which are to a certain extent contradictory, which may be gleaned from all of these cases. When those two propositions are put together, and are rationalized, it is my view that they adequately deal with the policy issues presented by this grievance.
The first proposition is that an employer, particularly one whose operations involve public safety, has a right to assure itself that its employees are medically fit either to return to work form an absence due to illness or injury, or to remain at work. The present Employer not only has such a right, it appears to have an obligation, at least in relation to its Air Traffic Control employees, as a condition of its operating licence in relation to the air navigation system.
The second proposition is that, absent some statutory authority or express consent either in a contract of employment or a collective agreement, an employer has no right to compel disclosure of personal medical information from an employee, or to compel the employee to undergo a medical examination by a physician of the employer’s choosing. I have already detailed the extent to which the specific statutory structure applicable to ATCs requires such disclosure of medical information or such medical examinations. The collective agreement adds nothing specific to these statutory intrusions on personal privacy and integrity.
As I have observed, these two propositions are, at least on the surface, inherently contradictory. There may be circumstances where only the opinion of a physician, whether a specialist in aviation medicine or some other discipline, would be sufficient to satisfy the Employer that a particular ATC is capable of returning to work or remaining on duty. If the employee does not consent to providing information to that physician or undergoing a physical examination by that physician, the Employer may simply be unable to satisfy itself of the employee’s fitness, as it is both entitled and required to do.
In my view, in such circumstances, the Employer has authority under the management rights provision of the collective agreement, again provided that it has acted reasonably in exercising this discretion, to refuse to allow an employee to return to duty or to continue at duty. Such a decision may or may not , depending upon the circumstances, amount to an administrative suspension from duty. It may also result, in some circumstances, in a reduction in or cessation of salary. In each case, the collective agreement must be consulted to determine the rights of the individual employee affected.
However, while it is my view that Article 3 [management rights clause] of the collective agreement is broad enough to allow the Employer to refuse to allow an employee to work unless it is satisfied of the employee’s fitness, it is not broad enough to permit the Employer to compel release of medical information to or medical examination by a third party. The Employer may request that an employee consent to do so, and if the request is reasonable in all of the circumstances, an employee who does not consent may well suffer the consequences of not demonstrating his or her fitness for duty. But beyond that the Employer cannot go.
Specifically, it is difficult to imagine circumstances in which an employee could be disciplined for not granting consent. The very notion of consent would, indeed, be undermined by an such conclusion. There may be administrative consequences of refusal of consent, including being placed on leave, paid or unpaid depending upon the circumstances, but I am unable to envision circumstances in which discipline for, for example, insubordination could ever be justified by a refusal to provide information or to undergo an examination which has no statutory or collective agreement authorization, and which would amount to a serious invasion of personal privacy or integrity.
This is not to say that there will not be circumstances where discipline may arise for related reasons. For example, there could be discipline for abuse of sick leave, or for breach of any of the regulatory requirements of disclosure of disabling conditions, or for a refusal to undergo medical examinations which are required by statute or regulation. At least in ordinary circumstances, however, I cannot imagine that it would ever be justified for the Employer to use threats of disciplinary action to compel an employee to consent to disclosure of medical information or to a medical examination. Obviously, in dealing in broad terms with a policy grievance there may be circumstances beyond my imagination which could justify such action; that can really only be determined based on the facts of each individual case.
Counsel for the parties described this arbitration as a search for guidance on complex policy issues, and I have taken that as an invitation to be discursive in my reply. Rather than attempt to summarize, which might lose some of the flavour of the qualifications which I have put on some of the propositions set out above, I simply declare that as a matter of general principle, the appropriate interpretation of the collective agreement clauses at issue is as set out above. While these principles may have to be adapted to individual cases, and there may be exceptions which I have not foreseen, these principles set out a reasonable balance between the rights of employees to personal privacy and integrity, even in the special circumstances of the air navigation system, and the rights and obligations of the Employer in relation to the fitness of its employees and the administration of the collective agreement.
Counsel for the Company characterizes the above as a reflection of a shift in Arbitrator Swan’s thinking towards a balancing of interests approach, where the privacy rights of employees must be dealt with in the context of legitimate safety-sensitive concerns of the employer.
Counsel for the Company also submits that other more recent arbitrations and court decisions have endorsed the risk management approach implicit in the Company’s drug and alcohol policy. In that regard he refers to the decision of Arbitrator Ponak in Procor Sulphur Services and Communications, Energy and Paper Workers, Local 57 (Holden grievance) (1998) A.G.A.A. No. 106 and the decision of Court of Queen’s Bench of Alberta in Walker v Imperial Oil Ltd.  A.J. No. 1252 (Alt. Q.B.) (QL).
In its reply the Intervener UTU seriously disputes the suggestion of the Company that it is inappropriate for the Arbitrator to consider specific aspects of the UTU’s collective agreement as they may be impacted by the Company’s drug and alcohol policy. He stresses the process whereby the Company itself, following the suggestion of the Arbitrator, canvassed all of its unions, inviting their intervention in the proceedings, so as to be able to emerge with a consistent ruling which would have the broadest application across the Company’s bargaining units. Indeed, as appears from the material submitted, the Company takes the position that unions which declined the invitation to intervene must be bound by the outcome of these proceedings. Counsel submits that in the circumstances the Company is without any ground to object to the scope of the UTU’s intervention in the instant case, and that it is absurd to believe that the UTU would have come to the proceedings to do other than identify and protect its own collective agreement rights. In counsel’s submission the Company must be taken to have waived any ability to object to the scope of the UTU’s intervention, in any event. Counsel submits that there is simply no basis upon which the Arbitrator should accede to the Company’s suggestion that entire sections of the UTU’s brief should be struck from the record.
As part of its reply the UTU also draws to the Arbitrator’s attention what it characterizes as a comprehensive condemnation of workplace drug testing generally. It refers specifically to a publication of the American Civil Liberties Union entitled Workplace Rights: Drug Testing issued on October 27, 1999, the introductory section of which includes the following passage:
Indiscriminate drug testing is both unfair and unnecessary. It is unfair to force workers who are not even suspected of using drugs, and whose job performance is satisfactory, to "prove" their innocence through a degrading and uncertain procedure that violates personal privacy. Such tests are unnecessary because they cannot detect impairment and, thus, in no way enhance an employer’s ability to evaluate or predict job performance. …
Urine tests cannot determine when a drug was used. They can only detect the "metabolites," or inactive, left-over traces of previously ingested substances. Drug testing can detect marijuana that was consumed even weeks before the test date. For example, an employee who smokes marijuana on a Saturday night may test positive the following Monday, long after the drug has ceased to have any effect. In that case, what the employee did on Saturday has nothing to do with his or her fitness to work on Monday. At the same time, a worker can snort cocaine on the way to work and test negative that same morning. That is because the cocaine has not yet been metabolized and will, therefore, not show up in the person’s urine.
Counsel notes the content of that study as substantially questioning the premise that the introduction of drug testing in the U.S. workplace has in fact caused a reduction in accident rates. The study also challenges the "junk science" which it alleges is resorted to by the cottage industry of companies which have sprung up around the drug testing industry in the United States, stressing the inability of urinalysis drug testing to make any determination with respect to the only important question, employee impairment. Counsel stresses that Canadian law and jurisprudence, like that of the majority of countries other than the United States, has more cautiously chosen to view workplace drug testing with suspicion, realizing that it may sometimes involve an authoritarian tendency to regulate employee morality.
Making reference to certain of the expert opinions found before the Arbitrator counsel for the UTU also questions the rationality of the Company’s overall drug testing scheme. In that regard he notes for example, that a number of drugs are not tested for, including LSD, largely by reason of the cost that that would involve. He submits that the overall credibility of the policy is called into question by such arbitrary limitations. He also questions whether the adversarial approach to drug use detection implicit in the Company’s policy will, as one of the expert witnesses suggested, tend to undermine the more co-operative efforts of established initiatives such as the EFAP and the Rule G By-Pass agreement. He suggests that in fact managers will be more inclined to resort to the easier approach of applying the drug and alcohol testing policy rather than resort to the more time consuming and more humane alternatives previously in place. The ultimate position of the UTU is that in fact there is no serious problem in the workplace, and that the existing approach to drug and alcohol problems, which involves co-operative efforts between employees and supervisors, with the backup of the Rule G By-Pass agreement and the EFAP, has been working quite well. Counsel submits that the extensive set of statutes and regulations in the industry, coupled with a well established co-operative approach through the SAC, make the Company’s unilateral resort to a drug and alcohol policy unnecessary and excessive.
The reply submissions of the CAW are extensive. They reiterate the Union’s concern over the lack of consultation and the fact that, in the CAW’s submission, the Company has brought forth no evidence of a real workplace problem which would justify recourse to drug and alcohol testing. Its counsel takes issue with the deterrence theory advanced by the Company’s consultants, as more fully elaborated in a critique offered by its own expert witness, Dr. Scott Macdonald.
Counsel further submits that the entire trend of the jurisprudence in Canada has been against drug and alcohol testing, as a general matter. In that regard, in addition to cases discussed above, he makes reference to Re Metropol Security (1997) 69 L.A.C. (4th) 399 (Whitaker), as well as the decision of the O.L.R.B. in Sarnia Cranes Limited. Counsel further notes that following the decision of the Federal Court of Canada, the Toronto Dominion Bank withdrew its alcohol and drug policy, deciding not to appeal the issue further.
Counsel takes issue with certain of the Company’s characterizations of the pre-policy regime. Among other things he challenges the suggestion of the Company that the Transportation Safety Board has ever suggested or recommended that drug and alcohol testing programs should be instituted within the railways. Nor does he accept the suggestion that the Company was truly faced with major inconsistencies in the application of its policies, or that its prior reinstatement practices and efforts at rehabilitation were other than reasonably successful.
Counsel also questions the Company’s reliance on the Hinton Commission Report, stressing that the report itself contains no suggestion that the accident in question resulted from drug or alcohol abuse on the part of any employee. Counsel submits that greater concern should be addressed to issues of worker fatigue and what he characterizes as "CN’s massive overtime practices," noting that employee fatigue was raised as a factor in the findings of the Transport Safety Board following the Edson accident.
The CAW submission takes an entirely different view of the Nav Canada decision of Arbitrator Swan than that advanced by the Company. He stresses that Arbitrator Swan found that the collective agreement there under examination was silent on the employer’s right to require disclosure of medical information or medical examination by a third party in circumstances which would be enforceable by disciplinary action. Counsel submits that Nav Canada is resolved on an administrative basis, whereby an employee refusing to submit to a test may be held out of service, subject to the employee’s ability to demonstrate his or her fitness, and to successfully grieve the employer’s action. The case does not, counsel submits, involve any retrenchment upon the more general notion of the need for statutory, contractual or consensual authority for an employer to demand the medical examination of an employee, a principle which he submits holds equally true with respect to drug and alcohol testing.
Counsel for the CAW submits that there is nothing in the Company’s presentation to truly establish that there is meaningful evidence of a problem with respect to the effectiveness of the Company’s previous policies to deal with drug and alcohol in the workplace, that its business interests can be said to justify substantial incursion into the privacy rights of individual employees, or that its risk analysis approach is justified in the circumstances, particularly given the inability to detect impairment by drug testing, or the time and place at which a drug may have been ingested. Counsel submits that a good example of the rejection of the Company’s risk theory approach is reflected in the decisions of the O.L.R.B. in Sarnia Cranes, citing the following passage at paragraph 175-177 of the award:
The inappropriateness of relying on such a rationale for imposing a regime of drug and alcohol testing is obvious. What about those persons who test positive for drug or alcohol use who were not in any way impaired at the time they provided the urine sample? These individuals will be captured by the terms of the drug and alcohol policy, and will suffer severe employment-related consequences, notwithstanding that they had attended for work in an unimpaired state. In fact, those persons may well have been more alert than other individuals employed by Sarnia Cranes who, for any reason, had not obtained a full, restful night’s sleep the prior evening. Even though Mr. Sherman agreed that Sarnia Cranes had no desire to impinge upon the right of its employees to spend their non-working time as they wished, there just cannot be any dispute that the effect of the employer’s drug testing policy is to infringe upon the private lives of its employees, particularly (but not exclusively) when those persons attend at work in an unimpaired state.
It seems to us that, contrary to Mr. Sherman’s understanding, work-related impairment is not the sole focus of the employer’s drug and alcohol policy. Instead, it appears to us that a major concern of the employer is dealing with the concept of risk. This is consistent with Dr. Kurtzer’s assessment of the purpose served by the United States Department of Transport testing regimen. It will be recalled that Dr. Kurtzer testified that his understanding of the regulatory framework in the United States was that the focus of that agency’s testing regimen was not impairment but rather the reduction of risk in the workplace. Here, the same conclusion can be reached regarding the purpose of the Sarnia Cranes policy, from Mr. Sherman’s own testimony. The employer has determined that its employees who use drugs or alcohol (on their own time or otherwise) create an increased risk for it in the marketplace, in that it is more likely than not that persons who use drugs or alcohol while they are away from the workplace will subsequently attend at the workplace and perform work under the influence of those substances. It desires to minimize that risk – or eliminate it – by excluding all those employees who may add to the risk of injury or accident from working at Imperial Oil. The difficulty is that the employer’s method of achieving that laudable goal – implementing a drug and alcohol test for its employees – excludes persons from working at Imperial Oil (and other sites) who would not add to that risk in any way whatsoever (and, as noted above, ignores the diminished capacity of workers caused by other factors).
To the extent that the employer’s unilaterally-imposed testing regimen was established to deal with workplace impairment, the drug and alcohol policy must be considered to be an unreasonable exercise of management’s rights under the ICI agreement, for the simple reason that its very premise – that the testing of employees for drugs will identify impairment – is false. The result of the employer’s drug testing regime is that persons who are not impaired during working time are treated as if they were. The consequences of being labelled as someone who tested "positive" are severe, as Mr. Sherman himself acknowledged. Any way that one looks at the situation, it is unreasonable to impose drug and alcohol testing upon the union and its members if the purpose of the testing is to identify on-the-job impairment.
Counsel submits that in fact the Company’s policy and risk justification analysis effectively puts the onus on the worker and absolves the Company from dealing with real impairment problems, and shifts the attention from other causes of impairment such as fatigue and stress which can impact human functioning. Among a number of other submissions in reply, the Union still expresses its concern that the Company’s policy can have a negative impact on the operation of its benefit plan, in particular as relates to the payment of weekly indemnity payments for ill or disabled workers. The Union maintains the position that the contractual benefits of its collective agreements must be available for an employee who is discharged for a non-culpable violation of the drug and alcohol policy. In that regard the policy forces draconian results by mandating automatic dismissal for violations of its terms.
With respect to the human rights issues, counsel submits that article 28.18 of collective agreement 5.1 specifically prohibits discrimination on the basis of disability, among other grounds. Reference is made to the treatment of a similar article in Re Bell Canada and C.T.E.A. (1994) 43 L.A.C. (4th) 172 (MacDowell). Counsel also refers the Arbitrator to a number of authorities, including awards pre-dating bill C-19 which confirm the ability of a board of arbitration to apply the provisions of the Canadian Human Rights Act, including CROA 3036. Reference is also made to cases confirming that the issue of perceived disability does trigger the protections of the Canadian Human Rights Act (John Mills and Canadian Human Rights Commission and VIA Rail Canada Inc. May 17, 1999).
Referring to Sarnia Cranes, counsel also stresses that there can be no BFOR defence in respect of a drug and alcohol test which cannot establish impairment at the time the sample is taken, the Union stresses that there is no rational link between a positive drug test and on-the-job impairment, or between impairment by alcohol and a breathalyzer reading at the cut-off level of .02 BAC. The Union also challenges the Company’s interpretation of Arbitrator McAlpine’s decision in Imperial Oil. It stresses a passage from the award confirming the arbitrator’s view that information obtained from blood tests or other medical screening should not be disclosed to the Company or its health professionals.
By agreement of the parties, this award is limited to issues of general principle relating to whether all or part of the policy violates the provisions of the collective agreements or the Canadian Human Rights Act. Should the policy be upheld in whole or in part, a resulting issue concerns the determination of those jobs within the bargaining units which are properly classified as risk sensitive. The specifics of which positions are risk sensitive, a matter which may come into dispute, have been agreed to be dealt with at a later stage of the hearing process.
Before turning to consider the merits of the dispute in respect of specific aspects of the Company’s Policy to Prevent Workplace Alcohol and Drug Problems, there are several preliminary issues to be touched upon.
As part of its submission the CAW took the position that none of the employees in any of its bargaining units should be deemed to hold risk sensitive positions for the purposes of the Company’s policy concerning drug and alcohol testing. It may be recalled that that argument was made, in part, on the basis that employees within bargaining units analogous to the Union’s bargaining units within the United States have not been made subject to the regulatory drug testing regime within the industry in that country.
The Arbitrator has difficulty with so sweeping a proposition. Firstly, as touched upon in the argument of the Company, there have been prior arbitral awards within the shopcraft sector confirming that employees in certain classifications within the bargaining units do work in risk sensitive positions, insofar as the danger of impairment by the use or abuse of substances is concerned. The Arbitrator cannot accept that employees whose duties and responsibilities include such functions as operating cranes, fork lifts, trucks and other road vehicles, hy-rails or other equipment which moves on railway lines, can be said to be in other than risk sensitive employment. I am content to reserve on the issue with respect to certain of the duties of carmen in freight yards, and appreciate that the Union will make further argument on the factors of supervision and specific assignments within a classification as they may bear on risk sensitivity. However, it would appear at least doubtful that an employee whose core duties involve the safety certifying and brake testing of a train marshalled for departure is not risk sensitive. As an initial proposition, therefore, the Arbitrator rejects the submission of the Union that none of the employees it represents could properly come under a drug and alcohol testing policy, assuming that that policy is otherwise consistent with the collective agreements and human rights legislation.
Secondly, the Arbitrator cannot accept the submission of the Company to the effect that this Board is without jurisdiction to rule upon the allegations of the Union that certain aspects of the policy are in violation of the Canadian Human Rights Act. Among the Company’s submissions in that regard is the argument that the jurisdiction presently conferred on boards of arbitration under the Canada Labour Code to consider the application of employment related statutes, a jurisdiction which has been in place for several months, cannot be utilized because the instant grievance predates those amendments of the Code. Firstly, to the extent that the application of the policy is clearly ongoing, and has continued to the present time, well past the coming into effect of Bill C-19, anything in the Company’s policy which would violate the collective agreements must be understood to be an ongoing breach of their terms. It would be artificial in the extreme, not to say entirely unresponsive to the labour relations realities, for this Board to take an unduly technical view of the scope of its jurisdiction, in the face of the clear mandate conferred upon boards of arbitration by Parliament through the recent amendments to the Code.
That is not to say that this Board can seize jurisdiction of human rights issues which are unrelated to specific terms of the collective agreements. However, the collective agreements before me give ample scope for the interpretation and application of human rights legislation, and the jurisprudence which surrounds it. For example, the Union’s allegations that the Company’s policy violates article 28.18 of collective agreement 5.1, a provision which expressly prohibits discrimination on a number of bases, including disability, makes it entirely appropriate for a board of arbitration to consider whether the Company’s policy, in whole or in part, violates the anti-discrimination provisions of the Canadian Human Rights Act, and by extension the prohibition contained within article 28.18 of collective agreement 5.1. If, as Lord Denning once put it, there cannot be one law for the courts and another for arbitrators, it would be highly questionable that the parties would have intended that a different concept of discrimination should operate within their collective agreement than is generally provided for in respect of employment by statutes of general application such as the Canadian Human Rights Act. Clearly, it would not be appropriate for a board of arbitration to interpret the rights of management under a collective agreement so as to promulgate and enforce rules which, on their face, would violate such public enactments. It is not only within the jurisdiction of this Board to interpret and apply the provisions of the Canadian Human Rights Act, but arguably there is an obligation upon the Board to do so, to the extent that the enforcement of the policy could be said to violate any provision of the Act by the purported exercise of management’s rights (McLeod v. Egan  S.C.R. 517; 46 D.L.R. (3d) 150). For these reasons the submission of the Company with respect to the jurisdiction of the Board to consider arguments relating to the Canadian Human Rights Act must be rejected.
Finally, as a preliminary matter, the Arbitrator deals with the role of the Intervener, and the submission of the Company to the effect that it is not appropriate in these proceedings to deal with specific aspects of the collective agreements negotiated between the Company and the United Transportation Union. As stressed by counsel for the UTU, there is a troubling aspect to the position so argued by the Company. It is the Company which, in my view, quite properly, invited the intervention in these proceedings of all unions with which it has collective agreements. The purpose of that invitation was ostensibly to receive the broadest possible submissions with respect to the propriety of the Company’s policy with respect to workplace substance use and abuse. Indeed, as counsel for the Company confirmed, it is the employer’s position that unions which failed to respond to the invitation to intervene should be prevented thereafter from challenging the results of these hearings or the content of the policy in a subsequent grievance. While I need not, and do not, rule upon the merits of that position, to uphold it would place the Intervener UTU in an invidious position. If the Company is correct, the UTU could not challenge the Company’s action under its own collective agreements if it had failed to appear in these proceedings, and secondly, having appeared, it is said by the Company to be without the ability to invoke the provisions of its own collective agreements to test the propriety of the Company’s policy.
In my view the Company cannot have it both ways. Fairness requires a reasonable understanding of the expectation of the parties invited by the Company to participate in these proceedings. There was clearly no indication in the Company’s overture to the Intervener union to the effect that it would merely be a spectator, or that it would be invited to comment only upon the content of another union’s collective agreement insofar as the impact of the Company’s policy is concerned. In the Arbitrator’s view, at a minimum, the Company must be taken to have waived any objection to the right of the United Transportation Union to argue the merits of certain provisions of its own collective agreements for the purpose of assessing the legality and enforceability of the Company’s drug and alcohol policy. As matters unfolded, the Intervener union came to the hearing prepared to make submissions with respect to the content of its own collective agreements. In fact it did so extensively throughout the proceedings, and was met with the full jurisdictional objection of the Company only in the closing stages. I am satisfied that in that circumstance the Company must be deemed to have waived any objection to the Intervener union raising provisions of its own collective agreements for full consideration by this Tribunal, as those provisions might bear upon the propriety of the Company’s policy. The Company’s position with respect to that issue must therefore be rejected.
Turning to the merits, seldom has the Arbitrator encountered a contest of such thoroughly considered and argued positions from both sides. The Company’s policy is rooted in a legitimate concern for the well-being of its employees and the safety of its own operations, in a manner most consistent with its obligations to the public. The Union and Intervener advance equally legitimate arguments in eloquent defence of the privacy and dignity of the individual, deeply cherished values in Canadian society. The Arbitrator must strive to resolve their positions in a manner that best reconciles the competing interests of the parties, in the light of established law and jurisprudence.
As is evident from the extensive submissions of the parties, the issue of drug and alcohol testing in the workplace is one of considerable complexity and sensitivity, which has generated much jurisprudential, arbitral and scholarly analysis in Canada. The approach to substance use and abuse among employees in Canada has differed markedly from the legislative and regulatory approach found in the United States, particularly as it relates to employees in the transportation industry. The Canadian approach, as reflected in the decisions of the courts, boards of arbitration and human rights tribunals, has consciously sought to give the fullest possible protection to the privacy and dignity of individual employees, while respecting the legitimate business interests of employers responsible for a safety sensitive enterprise. While for a time parliamentary committees considered the possibility of legislated drug and alcohol testing in the transportation industry in Canada, there has been forbearance on the part of both federal and provincial authorities with respect to any initiatives in that regard which might parallel the American model. It may be that the sensitive treatment of the issue by Canadian courts and tribunals, including boards of arbitration, has given a sufficiently fair and balanced protection to the interests of both employees and employers, so as to avoid the need for the more blunt and draconian alternative of legislative regulation. In any event, it is incumbent upon boards of arbitration called upon to deal with drug and alcohol testing policies in the workplace to do so with the greatest care, with the fullest appreciation for the rights and interests which are at stake, including those of employees, employers and, insofar as safety is concerned, the interests of the general public.
In the instant case two competing theories for the resolution for the drug and alcohol testing issue have been advanced by the parties. The initial and most fundamental position of the Union is that drug and alcohol testing can be resorted to by an employer only with statutory or consensual authority. That theory has its roots in the line of jurisprudence represented by such awards as Monarch Fine Foods and Shell Canada Products, and is said to be most elaborately articulated in decisions of Arbitrator Swan, most particularly in the decision involving the Canada Post Corporation Plant Security Policy Grievance. In the Union’s submissions those cases stand for the very simple proposition that no employee can be compelled by his or her employer to undergo a medical or physical examination of any kind, including drug and alcohol testing by the surrendering of bodily fluids, absent consent or legislative authority vesting such a right in the employer. The Union acknowledges that the consent could be provided by the agreement of a trade union representing the employees in question. Absent those conditions, the CAW argues, there can be no basis for requiring the physical examination of an employee, including drug and alcohol testing, with the presumed exception of a normal physical fitness examination reasonably related to the requirements of a job.
The competing theoretical basis for arbitral consideration of the issue, advanced by the Company, has been described as the "balancing of interests" approach. That perspective, perhaps best represented by the decision of Arbitrator McAlpine in the Esso Petroleum case, and further reflected in arbitral awards such as Re Provincial-American Truck Transporters and Sarnia Cranes, holds that in determining whether an employer may resort to drug and alcohol testing of its employees, a board of arbitration must endeavour to balance the interests of the employees in the privacy and integrity of their person with the legitimate business and safety concerns of the employer. Within that theoretical framework, neither the employee nor the employer can assert any absolute right. Rather, the analysis focuses on whether, given the nature of the enterprise and the work performed, reasonable limitations on the individual rights of the employees can fairly be implied. If so, then a correlative right may vest in the employer to require a medical examination of the employee, including alcohol or drug testing.
Upon a review of all of the authorities presented, the Arbitrator is of the view that the balancing of interests approach is to be preferred. Plainly it has emerged as the predominant theory by which the appropriateness of drug and alcohol testing is to be measured in a given workplace. There is, in fact, no cited arbitration award, human rights tribunal decision or court decision directly concerning drug and alcohol testing which has adopted the strict statutory authority/consent approach advanced as the primary position of the Union. It is important to appreciate that the arbitration awards argued as the underpinning for that theory dealt with very different issues. Monarch Fine Foods concerned the attempt by an employer to verify a foreign medical certificate presented by an employee to justify his absence from work by subjecting the employee to a second medical examination at the hands of the Company’s own physician. There being no issue as to the employee’s fitness to perform his job, the arbitrator found that a medical examination, which would be tantamount to a lie detector test, was not within the prerogatives of the employer in that circumstance. That case did not concern the right of an employer to obtain reasonable verification as to the physical fitness of an employee to perform his or her job, whether by reason of suspected impairment or otherwise. The decision of Arbitrator Swan in the Canada Post award concerned the limits which bear on the right of an employer to search the person and personal effects of its employees. The analysis offered by Arbitrator Swan in that award did not involve an examination of the right of an employer in a safety sensitive enterprise to require an employee to undergo a physical examination to determine his or her fitness for duty. Mr. Swan’s more recent decision in NavCanada did concern that very issue. In that award he did confirm that an employer may request an employee to be examined for fitness, and if the request is on reasonable grounds and is refused by the employee, the employer may justifiably withhold the individual from service, albeit not on a disciplinary basis. While the result in the NavCanada case can fairly be described as confirming that in some circumstances an employee who does not consent to a medical examination forfeits his or her right to work, it obviously involves a certain balancing of the interests of the employee and employer, as acknowledged by Arbitrator Swan himself.
If, as a matter of law, an employer can only base a right to demand a drug or alcohol test of an employee in a safety sensitive industry on express statutory authority or contractual consent, the extensive arbitral jurisprudence in the field could be shortened to a very few lines. As noted above, virtually all arbitrators who have been called upon to deal directly with the issue have declined to take the narrow approach of statutory authority/consent. Without exception, boards of arbitration, striving to be responsive and pragmatic in the face of workplace realities and genuine concerns for safety, have opted for the balancing of interests approach. In this Arbitrator’s view that is the preferable framework for a fair and realistic consideration of the issue of drug and alcohol testing in the workplace generally, most especially in an enterprise which is highly safety-sensitive. While the time-honoured concept of the sovereignty of an individual over his or her own body endures as a vital first principle, there can be circumstances in which the interests of the individual must yield to competing interests, albeit only to the degree that is necessary. The balancing of interests has become an imperative of modern society: it is difficult to see upon what basis any individual charged with the responsibilities of monitoring a nuclear plant, piloting a commercial aircraft or operating a train carrying hazardous goods through densely populated areas can challenge the legitimate business interests of his or her employer in verifying the mental and physical fitness of the individual to perform the work assigned. Societal expectations and common sense demand nothing less.
A useful analysis of the competing values and interests at play, with due allowance for labour relations realities in issues of workplace alcohol and drug testing, is found in the recent award of Arbitrator Kevin M. Burkett in a grievance between Trimac Transportation Services – Bulk Systems and the Transportation Communications Union, an unreported award dated December 10, 1999. That decision, which concerned a challenge to an employer’s policy of random drug testing for truck transport drivers, contains the following comments at pp. 31-35:
This issue, reduced to its simplest, pits an employer’s right to take reasonable and necessary steps to provide a safe and productive work environment against an employee’s right to privacy. As a general proposition, an employer’s right to manage, absent an express restriction, encompasses the right to take reasonable and necessary steps to ensure a safe and productive work environment and to promulgate policies and rules in support of that objective. If it was not for the issue of employee privacy, the debate about random mandatory drug testing would centre on its usefulness as a tool in achieving the legitimate objective of a safe and productive workplace. However, because individual privacy is a fundamental right in any democratic society and because the requirement upon an employee to subject himself/herself to urinalysis for the purpose of ascertaining drug use constitutes a significant invasion of personal privacy, the debate is a much more complex one.
It is useful at this point to comment that while the debate centres on the reconciliation of two competing interests, the contractual mechanism for determining which of the competing interests is to be given effect is the just cause provision. If an employer rule or policy is to have teeth, it is by means of the employer’s power to discipline. Employees who disregard or otherwise refuse to comply with an employer rule or policy leave themselves open to discipline. However, discipline can only be imposed for just cause such that it is open to a union to challenge the enforceability of a rule or policy as constituting an unwarranted invasion of privacy.
Because the objective of providing a safe and productive work environment is unassailable and because privacy interests are somewhat nebulous, it is easy to weigh in on the side of mandatory random drug testing, especially in a safety sensitive industry. It is easy to support the implementation of any policy that is designed to promote a safe and productive work environment and, on its face, has the potential to do so. However, when the privacy interest is understood, the debate takes on another dimension. It becomes not just a question of the efficacy of mandatory random drug testing, vis-à-vis the objective of a safe and productive work environment but rather a debate concerning the reconciliation of two competing interests. The "best" reconciliation of two legitimate but competing interests is achieved by measuring their competing impacts. Accordingly, an assessment of the extent to which mandatory random drug testing furthers the objective of a safe and productive workplace and a corresponding assessment of the extent to which it invades individual privacy is required.
Against this background it is useful to discuss in broad terms the meaning and importance of privacy in the Canadian setting. The right to one’s privacy is the right to protection from the unwarranted intrusion of others into one’s life. The underlying premise is that in a democratic society, an individual is free to live as he/she pleases without interference or monitoring, so long as there is no adverse impact upon another nor breach of the law. The Canadian acceptance of the right to privacy is traced through legislation, international and constitutional law, scholarly writings and judicial statements by Oscapella in Drug Testing and Privacy, Vol. 2, Canadian Labour Law Journal 325. The conclusion there is that privacy, as protected by Section 8 of the Charter, is "an essential value in Canadian society." Specific reference is made to the judgement of the Supreme Court of Canada in R. v. Dyment (1988) 2 S.C.R. 417, a case involving the taking of a blood sample for evidence of impairment. In his judgement, Justice Laforest referred to privacy as "at the heart of liberty in the modern state" and as "grounded in man’s physical and moral autonomy [and] … as essential for the well-being of the individual … [and] for the public order." Although conceding that privacy must be balanced against other societal needs, the court found that "persons are protected not just against the physical search but against the indignity of the search …". The court concluded that:
The use of a person’s body without his consent to obtain information about him invades an area of personal privacy essential to the maintenance of his human dignity.
Indeed, Canadian police are prohibited from taking breath or other bodily samples without reasonable and probable cause to suspect that an individual is under the influence of drugs or alcohol. In short, it is beyond debate that protection of the individual from unwarranted physical or property intrusion, including unwarranted searches, seizures or surveillance, is a core value of Canadian society.
The recognition of employee privacy as a core workplace value, albeit one that is not absolute, has been recognized by arbitrators in awards dealing with searches, surveillance, medical examinations and, more recently, drug testing. The ultimate determinations in these awards rest on their individual facts. However, in all cases, the ultimate determination is arrived at on a balancing of the aforementioned competing impacts, with the onus upon the employer to establish that its business interest outweighs the employee’s privacy interest. Employer initiated mandatory (i.e. involuntary) random drug testing brings to the fore the question of the extent to which employer business interests may override employee privacy interests. This is so because testing, while conducted in the interests of safety, not only provides others with access to personal information, but also constitutes a physical invasion. It is worthy of note that in the Canadian setting I was not made aware of the existence of mandatory random drug testing within any major police, firefighting, airline pilot, train engineer or paramedic group.
In Trimac Arbitrator Burkett was met with the same argument as is advanced by the CAW in the instant case, namely that an employer has no right to impose any kind of drug or alcohol testing without statutory authority or consent. Arbitrator Burkett gave thoughtful consideration to the statutory authority/consent theory advanced by the union, and ultimately rejected it in favour of a balancing of interests approach, largely predicated on the existence of just cause protections as a reasonable check upon management’s authority or the undue extension of management’s rights. At pp. 45-50 Arbitrator Burkett comments and reasons as follows:
This takes me to the alternative position advanced by the Union that regardless of how reasonable the employer’s actions may be, or how innocuous the impact may be, absent express permission in the collective agreement, the Company has no right to implement mandatory random drug testing. In other words, absent an express grant of authority the Company has no power to act. In taking this position the Union borrows heavily from Catherine Wedge, Limitations on Alcohol and Drug Testing on Collective Bargaining Relationships, Vol. 2, Canadian Labour Law Journal, B.461. The crux of the author’s position is that at common law an individual’s civil right of privacy can only be modified by express legislative enactment or by express agreement. The central premise is that without an express contractual mandate an employer can not rely on residual management rights to require its employees to subject themselves to mandatory random drug testing, no matter how reasonable such testing may seem. The author quotes with approval the passage from the 1978 award in Monarch Fine Foods (1978) 20 LAC (2d) 419 (Picher) as follows:
It is well established that persons do not by virtue of their status as employees lose their right to privacy and integrity of the person. An employer could not at common law assert any inherent right to search an employee or subject an employee to a physical examination without consent. … thus there is nothing that can be described as an inherent management right to subject an employee to what would otherwise be a trespass or an assault upon the person.
The author argues that a misreading of the seminal KVP award (1965) 16 L.A.C. 731 (Robinson) is at the root of the misconception concerning the applicability of a reasonableness test. It is submitted that on a close reading of KVP the concept of reasonableness is relevant only to the issue of penalty and that on the issue of the employer’s contractual capacity to introduce the rule, KVP stands for the proposition that where a rule diminishes a pre-existing legal right of an employee, it cannot be imposed unilaterally. B.C. Railway Co. and Canadian Union of Transportation Employees (1982) 8 L.A.C. (3d) 250 (Hope) is cited in support of this interpretation of KVP.
I reject this analysis. While the author is correct in asserting that KVP deals with the discipline imposed for breach of a unilaterally imposed rule and must be read in this light, there is a clear distinction made in the award between "Characteristics of Such Rule" and "Effect of Such Rule re: Discharge". Under the former heading the arbitrator set out a number of criteria that must be met when "a rule is unilaterally introduced by the Company, and not subsequently agreed to by the Union" is introduced. Included in these criteria are, firstly, that the rule must not be inconsistent with the collective agreement and, secondly, that it must not be unreasonable. The assertion, therefore, that on a close reading of KVP "the concepts of reasonableness and consistency of application are relevant only to the issue of penalty imposed pursuant to the rule and not to the right to introduce the rule" is wrong. KVP clearly contemplates that the employer may promulgate rules under its general management rights provided that the enumerated criteria are met. Furthermore, in so far as B.C. Railway (supra) is relied upon in support of the proposition that notwithstanding any test of reasonableness it is beyond the power of an employer to promulgate rules that are not within its express authority under the collective agreement, that assertion is also wrong. B.C. Railway, which dealt with a union policy grievance challenging the employer’s right to unilaterally impose a mandatory hard hat rule, stands for the proposition that in deciding whether or not a particular rule is within the contractual competence of an employer, the test is not whether the rule is reasonable but rather whether it "falls within the traditional right to manage the enterprise and direct the work force" under the management rights clause. The decision in B.C. Railway, not surprisingly, was that it is within the contractual competence of the employer to make rules relating to the safe operation of its workplace.
The Wedge analysis, as advanced by the Union as an alternative position, has a surface technical appeal to it. The author is correct when she states that every employee brings a pre-existing common law right to privacy to the workplace. However, not only does the author misapply both KVP and B.C. Railway but she ignores the reality of collective bargaining and the workplace. The reality of collective bargaining and the workplace is that in the normal course, as here, the general right to manage the operation and direct the workplace is left to management, subject to the confines established by the collective agreement, including just cause protection afforded employees. Employers are not required to negotiate specific rules to cover every eventuality in advance. Rather, it is accepted that management will make rules and issue policies that are necessary to the achievement of its business objectives, subject to the right of the union to challenge these rules as not meeting the test of just cause if they are not reasonably related to the achievement of legitimate business objectives or as otherwise contrary to the terms of the collective agreement. There is not a single case of which I am aware that has found that rules relating to the safe operation of the workplace are not within the authority of management under its general right to manage. Indeed, in all cases dealing with drug and alcohol testing cited herein, this is taken as a given. Collective bargaining is difficult enough without requiring the parties to negotiate in advance any rule that may impinge upon an employee’s privacy rights. Indeed, the dynamic nature of the workplace would make such a requirement impractical. In the result the jurisprudence has developed along another track such that even if it could have been argued at one point that absent prior agreement management has no authority to unilaterally promulgate any rule that impinges upon an employee’s privacy right, that argument is no longer available. To reiterate, the shared expectation of the parties to collective bargaining, shaped by the jurisprudence, is that an employer has the right under its general right to manage to make rules relating to the safe operation of the workplace and that the union can challenge these rules under the just cause provisions as not reasonably related to the business objective or as otherwise in contravention of the collective agreement. Accordingly, I reject the alternative position of the Union on the basis that the parties to collective bargaining understand when they assign to the employer a general right to manage that that right includes the right to make rules and implement policies that are designed to enhance the safe and productive operation of its business.
In the result I am taken back to the contest between an employer’s right to manage and an employee’s right to individual privacy that is dealt with in the drug and alcohol testing awards that are cited herein. Simply put, absent express language in the collective agreement, both the employee’s right to individual privacy (with all that that entails) and the employer’s right to make rules for the purpose of furthering its business objectives (with all that that entails) are accepted as legitimate and valued, albeit sometimes competing rights. In circumstances where these rights are competing, such that employees may be disciplined for non-compliance, resolution is achieved by weighing or balancing the competing impacts. In respect of drug and alcohol testing of employees the balance has been struck in favour of protecting individual privacy rights, except where reasonable and probable grounds exist to suspect the drug and alcohol impairment or addiction of an employee in the workplace and except where there is no less intrusive means of confirming the suspicion. Conversely, the balance has been struck in favour of management’s right (as part of its general right to manage) to require drug or alcohol testing, where the two aforementioned conditions exist. It follows that each case must be decided on its own facts.
I accept the above analysis without reservation. Just as the common law privacy rights of employees not to have their personal effects searched has been found by boards of arbitration to properly yield to a legitimate employer interest to further the security of its operations by reasonable rules, (a conclusion endorsed by Arbitrator Swan in his specific conclusions in the Canada Post case), so too there may be circumstances in which it is reasonable and appropriate for an employer to require an employee to undergo an alcohol or drug test. In citing that conclusion, however, I stress the following comments from the Canadian Pacific Limited award, cited with approval by Arbitrator Burkett:
… The right that an employer may have to demand that its employees be subjected to a drug test is a singular and limited exception to the right of freedom from physical intrusion to which employees are generally entitled by law. As such it must be used judiciously, and only with demonstrable justification, based on reasonable and probable grounds.
Through an application of the balancing of interests approach, reasonable cause drug and alcohol testing has received almost unanimous acceptance among Canadian arbitrators. In addition to the railway arbitration awards cited above, involving both Canadian Pacific Limited and CN, reference may be had to the awards of the arbitrators in Provincial-American Truck Transporters; C.H. Heist Ltd. and Energy and Chemical Workers’ Union; Procor and Communication, Energy and Paperworkers’ Union; Re National Gypsum Canada Ltd. and I.U.O.E., Local 721 and 721B (1997) 67 L.A.C. (4th) 360 (MacKeigan), as well as the awards of Arbitrators Burkett in Trimac Transportation Services and McAlpine in Esso Petroleum Canada. It may also be noted that Imperial Oil (Entrop), perhaps the leading tribunal decision in the human rights area, did not strike down reasonable cause drug testing in appropriate circumstances.
An essential part of the balancing of interests is to determine whether an employer promulgated rule is reasonable. All of the parties before the Arbitrator acknowledge that, absent contrary language in a collective agreement, it is open to an employer to make policies and rules governing its employees, subject to certain generally recognized standards. Those standards, best articulated in the KVP decision, include the requirement, recently acknowledged by the courts, that a policy or rule must be related to the legitimate business interests of the employer, and that it must be reasonable (Re Municipality of Metropolitan Toronto v. C.U.P.E., Local 43 (1990), 69 D.L.R. (4th) 268 (Ont. C. A.)). As further discussed below, an element to be considered in the assessment of reasonableness is whether a rule introduced by management is inconsistent with any substantive provision of a collective agreement, including the protection of employees against discipline or discharge without just cause.
The only arbitration award of which the Arbitrator is aware which appears to have directly struck down a policy of reasonable cause drug testing is a decision of the Ontario Labour Relations Board in Sarnia Cranes. The reasoning of the O.L.R.B. in support of its decision to disallow for cause or post accident drug testing, as well as random drug testing, appears to be grounded in the rationale that because urinalysis drug testing is not a perfect instrument, that is to say it cannot conclusively prove impairment at the time the sample was taken, the Company’s rule in relation to it is unreasonable by the standards of the KVP decision. With respect, the suggestion that for cause urinalysis drug testing cannot be resorted to because it is an imperfect or limited instrument is a troubling proposition. It is undisputed (and on this issue all of the experts who testified in these proceedings are in agreement) that a positive drug reading does not confirm impairment at the time a urine sample is taken. For that reason any rule which mandates automatic discharge, or any disciplinary consequence, for a positive drug test alone is manifestly unreasonable, by KVP standards, and would clearly run afoul of the just cause provision of a collective agreement. To say, however, that recourse cannot be had to a drug test in reasonable grounds or post accident circumstances, for broader purposes, such as corroborative value in the face of other compelling evidence of impairment, is highly questionable, and in my view incorrect. No one disputes, moreover, that a negative drug or alcohol test can be useful to conclusively rule out impairment.
While the analogy is not perfect, it can be argued that finding an empty liquor bottle in an employee’s locker in the workplace is not conclusive of consumption of alcohol on the part of that employee while at work, or of impairment. Few would deny, however, the right of an employer in a safety sensitive industry to search for such evidence, and to advance it for the corroborative support it may lend to inferences based on other testimony or evidence which would tend to establish workplace alcohol consumption and/or impairment. It is doubtful that any board of arbitration would consider the search of an employee’s locker on reasonable grounds to be wrongful, even if the purpose is to discover a piece of evidence which would not be conclusive of alcohol consumption or impairment. While I readily agree with the arbitrator in Sarnia Cranes and the adjudicator in Entrop that the fact that a positive drug test does not prove impairment is a "sticking point", it is only a sticking point to the extent that an employee might be summarily dismissed merely for testing positive. It is not, in my respectful view, a "sticking point" for the arguable purpose of obtaining evidence which may be material and relevant to corroborate other evidence or to be of assistance in the drawing of inferences.
Suppose, for example, that a supervisor enters a warehouse where four individuals are working. The smell of marijuana is clearly detectable and an extinguished "roach" is found. All four employees deny any use of the drug while at work. If, the following day, or perhaps even the following week, each of the employees concerned takes a drug test by urinalysis, and one produces a positive result, the combination of circumstantial evidence, including the odour, the finding of a discarded "roach", and the positive drug test of only one of the four employees would, at a minimum, constitute a factual basis upon which meaningful inferences could be drawn, on the civil standard of the balance of probabilities.
In the result, and consistent with the preponderance of the jurisprudence, I am satisfied that the balancing of interests approach is the correct one in a case of this kind, and that reasonable cause drug testing is an appropriate rule and policy, particularly within the context of a safety sensitive industry such as railroading. Reasonable cause drug testing is a concept that was confirmed within the railway industry more than ten years ago by the awards in Canadian Pacific Limited and CN, referred to above, and it has not since been negated by any negotiated collective agreement provision of which I am aware. I am also satisfied that a fair extension of reasonable cause testing is that it applies quite properly in a post accident or post incident situation. As the lessons of the Hinton collision and the focus of the Foisy Commission Report made clear, in the aftermath of an accident, which in the railway industry can be of catastrophic proportions, a railway can expect to be held to a standard of intense scrutiny with respect to the due diligence it exercises in ensuring the fitness for duty of its employees. It can expect to be held to a rigorous obligation to gain the widest possible information about factors which may have influenced the unfolding of an incident. This level of obligation was found to be a legitimate basis for reasonable cause drug testing by the Human Rights Boards of Inquiry in Entrop.
One further theoretical concept needs to be addressed before turning to the specifics of CN’s drug and alcohol policy on this matter. As a number of the arbitral awards reflect, it is generally accepted that in analyzing the reasonableness of a drug and alcohol testing policy for the purposes of KVP standards, there may be a burden upon the employer to first demonstrate the need for such a policy, including an examination of whether alternative means for dealing with substance abuse in the workplace have been exhausted. While I do not disagree with those principles, I believe a note of caution should be registered, particularly with respect to that requirement. It seems to the Arbitrator that there are certain industries which by their very nature are so highly safety sensitive as to justify a high degree of caution on the part of an employer without first requiring an extensive history of documented problems of substance abuse in the workplace. Few would suggest that the operator of a nuclear generating plant must await a near meltdown, or that an airline must produce documentation of a sufficient number of inebriated pilots at the controls of wide-body aircraft, before taking firm and forceful steps to ensure a substance-free workplace, by a range of means that may include recourse to reasonable grounds drug and alcohol testing. The more highly risk sensitive an enterprise is, the more an employer can, in my view, justify a proactive, rather than a reactive, approach designed to prevent a problem before it manifests itself. While more stringent thresholds may fairly be applied in non-safety sensitive work settings, as for example among clerical or bank employees, boards of arbitration should be cautious before requiring documented near disasters as a pre-condition to a vigilant and balanced policy of drug and alcohol detection in an enterprise whose normal operations pose substantial risks for the safety of employees and the public.
Against the background of the foregoing principles, I turn to consider the merits of the parties’ positions with respect to the content of the Company’s drug and alcohol policy. Can it fairly be said that the Company has demonstrated the need for the policy? I am satisfied that it has amply done so. Few enterprises in Canada can more credibly argue the safety sensitive nature of their operations than a national railway. With maintenance facilities, yards, industrial spurs and main line operations extending across the continent, with responsibility for the operation of trains by unsupervised crews whose work includes the hauling of trains of enormous length and weight, the content of which frequently includes hazardous chemicals and other dangerous goods, sometimes through populated areas, the Company’s status as a safety sensitive enterprise is self-evident. As noted above, while questions may arise with respect to the safety sensitive nature of various jobs and classifications within the Company, those issues are to be addressed in subsequent segments of this arbitration.
The Arbitrator is also satisfied that the Company has adduced evidence sufficient to justify its substance abuse policy, including drug and alcohol testing. As related in the submission of the employer’s counsel, CN has extensive experience in drug and alcohol testing over the past decade, including circumstances of hiring, promotion, reasonable cause and post accident testing. Its data confirm a relatively high incidence of positive test results across Canada, exceeding ten per cent over all categories of testing in Western Canada. While positive drug tests obviously do not confirm that individuals in the railway industry have necessarily used illegal drugs while at work, a substantial number of awards of the Canadian Railway Office of Arbitration provide a well-documented record of cases which reveal the unfortunate willingness of some employees to have drugs or alcohol in their possession while at work, to use them while at work, or to report for work under their influence. When regard is had to the data advanced by the Company, and the highly safety sensitive nature of its operations and obligations as a public carrier, there can be little doubt that a reasonable policy of drug and alcohol testing is justified.
The Arbitrator is of the further view that the Company has taken sufficient steps to exhaust other less intrusive alternatives to deal with the problem of substance abuse in the workplace. The material before me confirms that CN is among the most sophisticated of employers with respect to the development of such programs as the EFAP and the Rule G By-Pass agreement. Those initiatives, which have been in place for a number of years, are exemplars of an enlightened and humane approach to the problem of substance abuse. The Company has long acknowledged that, in appropriate cases, drug and alcohol addiction or dependency are a disability to be dealt with in a manner consistent with well-established arbitral and human rights principles, including the duty of accommodation.
The Arbitrator cannot accept the view of one of the Union’s expert witnesses that the implementation of a drug and alcohol policy will have the effect of undermining the effectiveness of alternative approaches such as the EFAP. On the contrary, it may well be that the detection of substance abuse problems among employees through the testing policy will in fact help in identifying employees in need of EFAP assistance, and thereby enhance the use and effectiveness of that approach. The Arbitrator is satisfied that a reasonable drug and alcohol testing policy can and will serve needs which are not being met by the existing programs, particularly with respect to the problem of substance abuse detection. Simply put, the policy can do things which the more voluntarist EFAP and Rule G By-Pass agreement cannot do. This is not, therefore, a circumstance where the Company’s policy must be found to be unreasonable because the employer has failed to adequately explore or utilize alternative approaches to the problem of substance abuse in the workplace. It has done so.
The CAW and the UTU assert that their collective agreements occupy the field with respect to the physical or medical examination of employees or, in the case of the UTU, in respect of dealing comprehensively with the issue of substance abuse through such agreements as the EFAP/SAC and Rule G By-Pass. However, collective agreement provisions such as rule 6.27 of collective agreement 12, governing medical examinations for employees charged with the operation of a motor vehicle on a highway as part of their employment, are intended to deal with a specific requirement of general physical fitness, and cannot be fairly construed as exhaustive of the rights of management with respect to ensuring that its employees are reasonably fit for service. The same is true of the joint union /management agreement on alcohol and/or drug abuse in which the UTU is a participant, and which is overseen by the Senior Advisory Committee. The fact that that agreement espouses and advances EFAP principles and encourages the early detection and treatment of substance abuse problems in the workplace cannot be taken as implicitly preventing other reasonable initiatives by the employer, presumably consistent with KVP, to deal with the detection, monitoring or treatment of substance abuse among the employees of the bargaining units concerned. The same may be said of the Rule G By-Pass agreement. None of the collective agreement documents referred to by counsel for both unions contain any express prohibition against the exercise of such rights as management may otherwise have to utilize drug and alcohol testing in the workplace. Accordingly, I cannot find that the collective agreements constitute a complete code or an impediment to the adoption of a supplementary policy.
Nor is the Arbitrator persuaded that such a general authorization as may exist for employee medical examinations within such public enactments as section 35.1 of the Railway Safety Act should be seen as limiting the reasonableness of drug and alcohol testing among Company employees. In the Arbitrator’s view, such statutory provisions must be regarded as minimal protections enacted for general public safety, and not the outside limit of the measures which a diligent employer in a highly safety sensitive industry may utilize in the advancement of its legitimate business interests.
The real conflict between the Company’s drug and alcohol policy and the collective agreements of both the Union and the Intervener is the contradiction between substantial parts of the language of the policy and the just cause provisions of the agreements. For example, at p. 20 of the policy the Company states that "presence in the body … of illegal drugs is prohibited while on duty". At page 16 of the policy employees are advised that any violation of the policy by an employee in a risk sensitive position "… will result in dismissal". However, it is common ground (and on this all of the expert witnesses are in agreement) that a positive drug test gives no indication as to when or in what amount the drug in question was ingested. More specifically, it cannot, standing alone, establish impairment while an employee is on duty, is subject to duty or is on call. In that context, if parsed literally, the rule expounded by the employer is that if an employee has ingested an illegal drug, for example marijuana, during a scheduled leave or holiday, and tests positive some weeks later, he or she will be discharged. In the Arbitrator’s view, that rule is unreasonable on its face as there is no nexus between a positive drug test, standing alone, and impairment while on duty. So construed the rule would purport to regulate the private morality of employees, without reference to any clearly demonstrated legitimate employer interest.
Under the collective agreements, which contain extensive provisions for the investigation of disciplinary infractions, employees are to be discharged or disciplined only for just cause. To the extent that the policy stipulates that for unionized employees a positive drug test is, of itself, grounds for discipline or discharge, it must be found to be unreasonable, and beyond the well accepted standards of the KVP decision.
In addition, in the Arbitrator’s view, the rule of automatic discipline or discharge cannot be defended on the basis of the general proviso found at p. 38 of the policy, which states that an investigation will be conducted "in accordance with the collective agreements, if applicable". The fact that a disciplinary investigation confirms that the policy has been violated by the mere fact of a positive drug test does nothing to make the rule any more reasonable or justifiable on a legitimate business basis. A positive drug test, which is not proof of impairment while on duty, while subject to duty or while on call, cannot, standing alone, be just cause for discipline.
The Company advanced a "risk theory" to justify the automatic discharge of employees for a violation of the policy, including a positive drug test. There is a disturbing flaw in the reasoning underlying the risk theory, which would go as follows: a test discloses that employee X once ingested an illegal drug or alcohol; it is therefore probable that employee X has or will attend work under the influence of drugs or alcohol, or suffering significant after-effects of the use of drugs or alcohol; therefore employee X should be fired. There is, in my view, an obvious logical discontinuity in the above reasoning. The Company has offered no evidence whatsoever to confirm any meaningful statistical likelihood that persons who consume alcohol or non-prescription drugs are by that fact likely, in any meaningful sense, to report for duty, to be subject to duty or to be on call while impaired or suffering after-effects of impairment so as to render them unfit for duty.
To be sure, it can be argued that there is a higher risk that a drinker will attend at work either impaired or hung over than a teetotaller. It does not follow, however, that all drinkers should therefore be dismissed from service. The same holds true for drug use, whatever one may think of its morality. A mandatory discharge rule based on such flawed logic cannot be held to be reasonable within the strictures of the KVP standard, and certainly cannot justify encroaching gravely upon the privacy rights of employees by the intrusive expedient of urinalysis.
The risk avoidance argument that an employer can be properly concerned about the residual effects of drugs and alcohol on employees who may not be proved to be impaired at work by the results of a positive test was closely examined and rejected by Arbitrator Burkett in the Trimac Transportation Services award. At pp. 55-58 Arbitrator Burkett comments:
… The Company, relying on the testimony of its experts, argues that there is a distinction between being under the influence of drugs or alcohol at work and being impaired by the delayed or residual effects of drugs or alcohol at work. Again, relying on its expert witnesses, it is argued that because performance is impaired by the delayed or residual effects of drugs or alcohol, the Company has an obligation to take whatever steps are necessary to minimize or eliminate this risk. Relying on the expert evidence of Mr. Crouch that visual assessment by supervisors is not a reliable means of identifying workplace impairment, the Company argues that mandatory random drug testing is the only viable mechanism for minimizing the risk posed in this workplace by the residual effects of drugs and is, therefore, a legitimate and reasonable exercise of management rights that takes precedence over employee privacy. Finally, the Company relies on the expert evidence that the number of positive drug tests in a workplace diminishes with the passage of time as proof that mandatory random drug testing serves its intended purpose.
The Company’s risk avoidance argument has a surface attraction to it. However, upon closer scrutiny it is found wanting. The reported awards have rejected mandatory random drug testing on the basis that absent a nexus to workplace drug impairment there is an insufficient business interest. Implicit in the Company’s risk avoidance argument and the evidence tendered in support is the premise that any risk, regardless of degree, gives rise to a business interest that trumps an employee’s privacy interest. This cannot be so. Where countervailing privacy interests are at stake, there must be a balancing of impacts such that the degree of risk must meet a threshold sufficient to override the privacy interest. There are levels of impairment brought on by minor medical conditions such as a cold, allergies, a poor night’s sleep, a headache, etc. that normally do not pose a sufficient safety risk as to prevent an employee from working, even in a safety sensitive environment. Indeed, there is nothing to suggest that this employer, even though acutely sensitive to safety issues, has ever taken active steps to keep employees suffering from these minor "aches and pains" away from work. It follows that if the impairment caused by the residual effects of drugs poses a safety risk sufficient to allow mandatory random drug testing, it must be a risk greater than that caused by these minor everyday maladies.
The onus is upon the Company, as the party seeking to force employees to submit to mandatory random drug testing, to establish that the risk threshold necessary to validate its initiative is met. The Company has not met this onus in this case. Whereas Mr. Crouch drew a clear distinction between being under the influence of drugs and alcohol and being impaired by the residual effects of drugs, his evidence failed to establish the degree of risk. The same can be said in respect of Dr. Kinneburgh’s evidence. It is not sufficient to simply refer to "fatigue", "crash phase" or "excited state" without establishing, by empirical studies or otherwise, the nature, extent and duration of the impairment caused by the residual effects of drug taking, relative to the work function at issue. Without such evidence, a finding cannot be made as to the extent of the risk. Do the residual effects of drugs or alcohol constitute a similar risk to that posed by an employee who comes to work with a headache, a cold, a poor night’s sleep or suffering from allergies or do these residual effects constitute a greater risk sufficient to warrant the implementation of mandatory random drug testing? On the evidence, I am simply unable to make that finding. Accordingly, without stipulating what the risk threshold is, on the evidence before me, I am unable to find that a risk threshold sufficient to allow the Company to implement mandatory random drug testing and, thereby, to override employee privacy rights, has been met.
The Company’s reliance on the decline in positive test results over time, following the implementation of mandatory random drug testing, is a "bootstrap" argument. If the technology is such that mandatory drug testing is incapable of determining whether an employee is under the influence at work at the time the test is administered, as is undisputed, and if the evidence does not establish that the residual effects of drug-taking pose a risk that justifies mandatory random drug testing, then any decline in positive tests results is irrelevant. It is relevant to the issue of an employee’s off-work lifestyle choices. However, it is not relevant to the issue of whether the Company has a business interest in implementing mandatory random drug testing that is sufficient to override the employee’s privacy interest in not being subjected to mandatory random drug testing.
While the risk avoidance theory cannot stand as justification for a rule of automatic discharge for a positive drug test, can it have a reasonable place in support of other legitimate interests of an employer in a safety sensitive enterprise? It should be noted that Arbitrator Burkett was dealing with a mandatory random testing regime, as opposed to for cause or post accident testing, or testing in relation to promotion or transfer into a risk sensitive position. A question which arises for determination in this grievance, but was not before Mr. Burkett, and, for that matter, has not been dealt with extensively in any of the reported jurisprudence, is whether risk avoidance can reasonably support a drug and alcohol policy which would require the drug or alcohol testing of employees involved in a significant accident or incident, seeking promotion or transfer into the responsibilities of a highly safety sensitive position, or in respect of whom there are reasonable ground to suspect impairment.
Given the highly safety sensitive nature of the Company’s operations as a railway, it is reasonable for the Company to require employees in risk sensitive positions to undergo drug and alcohol testing in circumstances where it has reasonable grounds to believe that an employee is impaired while on duty, while subject to duty or while on call, including where an employee has been involved in a significant accident or incident, or when an employee seeks promotion or transfer into a risk sensitive position. While it is true that in all of the foregoing circumstances a positive drug test would not give the employer conclusive proof that an employee was or would be impaired while at work, or that he or she suffers from an alcohol or drug addiction or dependency, it may nevertheless be a significant and relevant piece of evidence which the employer can legitimately weigh in the balance in considering the merits of discipline, renewed safety measures or additional vigilance in the aftermath of an accident or incident. It may also bear on further investigation of the merits of the fitness of an individual for promotion or transfer into a risk sensitive position. That is not to say, however, that an employee who tests positive for drugs or admits occasional alcohol consumption must automatically be rejected for promotion or reassignment. Much will depend on the individual circumstances of the case, and it is impossible to posit any general or sweeping rule in that regard. By way of example, however, it does appear to the Arbitrator reasonable for the Company to have pause before promoting a person to the responsibilities of a locomotive engineer or a train conductor if, as part of a medical fitness examination, that individual tests positive for the use of cocaine, a highly addictive substance. I cannot conclude that drug testing as part of the medical examination that would lead to that discovery is unreasonable, unrelated to the legitimate business interests of the employer or an undue encroachment on the privacy rights of individuals whose expectations must conform to the risk sensitive concerns of the industry in which they seek to hold employment.
In the result, I am satisfied that those aspects of the drug and alcohol testing policy which would require an employee, under pain of discipline, to undergo drug and alcohol testing on the basis of reasonable grounds, including after a significant accident or incident, or as a pre-condition to promotion or transfer into a risk sensitive position are not, of themselves, unreasonable by the standards of KVP, and are not a violation of the collective agreements. Obviously an employee can decline to undergo a drug or alcohol test where it is manifest that there are no reasonable grounds to do so.
It would appear that this may be the first arbitral award, or tribunal decision of any kind, which finds drug testing to be permissible as a precondition to promotion or transfer into a risk sensitive position. The Union stresses that such testing differs from reasonable grounds or suspicion of impairment testing, and represents a further incursion into the privacy of employees. After much consideration, I am satisfied that such testing is justified, and represents a reasonable exercise of management’s rights in the highly safety sensitive transportation industry. Section 35(1) of the Railway Safety Act authorizes railway companies to perform their own periodic medical examinations of designated employees. It is clearly within the legitimate interests of a railway to reasonably ensure that persons who move into risk sensitive positions do not suffer from an active drug or alcohol addiction or dependency. While a positive drug or alcohol test during the promotion or transfer process will not be conclusive of that question, it will justify further inquiries and a more complete assessment of the individual, so as to rule out any such problem prior to the individual assuming risk sensitive responsibilities. The careful vetting of applicants for risk sensitive positions, including drug and alcohol testing administered by the employer, is a reasonable exercise of a railway’s management rights, as a further means to ensure safe operations. In fact, there is considerable precedent for Company administered medical examinations, particularly among running trades employees. Its interests in that regard must fairly be seen to outweigh the privacy rights of those who would seek to gain the responsibilities and rewards of risk sensitive employment. As a point of clarity, however, it should be stressed that the Arbitrator does not consider it to be a reasonable exercise of management’s rights to require a drug or alcohol test of an employee who merely moves from one risk sensitive position to another.
In addition, in the Arbitrator’s view, drug and alcohol testing for the above listed purposes would not be in violation of the Canadian Human Rights Act, as applied to persons holding risk sensitive positions. Very simply, freedom from impairment by drugs or alcohol, and freedom from active addiction or dependency on those substances which could cause impairment constitutes a self-evident bona fide occupational requirement for any person who exercises risk sensitive duties and responsibilities within a railway. Even though a positive drug test might not prove impairment while on duty, it is nevertheless evidence which can be legitimately obtained and considered by the employer in the diligent exercise of its obligations in respect of safe operations, be it in the context of reasonable cause testing, post accident or incident testing or in the context of promotions and transfers into risk sensitive positions.
For the reasons elaborated above, I am also satisfied that the Company’s requirements in that regard are reasonable. Accepting that drug or alcohol dependency is a disability protected by the Canadian Human Rights Act, and that the identification and restriction from service of persons with those disabilities can be said to be prima facie discrimination, such discrimination would be amply justified, in relation to risk sensitive positions, on any fair application of the BFOR defence. Alternatively, to the extent that employees whose use of alcohol or drugs is unrelated to any addiction or dependence, those individuals can claim no protection under the Canadian Human Rights Act, as they cannot claim a protected disability. In that context, therefore, nothing in the Company’s drug and alcohol policy relating to the testing of employees for drug and alcohol consumption can be said to discriminatory or in violation of any protected status under the Canadian Human Rights Act.
Alternatively, if it can be argued that under the Canadian Human Rights Act persons who are merely perceived to be disabled have the protection of the Act against discrimination, I would conclude that persons who advance a shield of protection of the basis of perception can be in no better position than those who are actually disabled. When an employer has reasonable grounds to suspect drug use on duty by an employee, it is obviously difficult, if not impossible, for an employer to know whether that individual will be clinically shown to be drug dependent or merely an occasional drug user. There is nothing within the language of the Act which would suggest that employers must make that distinction between dependency and casual use in advance, before requiring a drug or alcohol test of an individual. Parliament could not, in my view, have intended that recreational drug and alcohol users who are neither addicted nor dependent, should be sheltered from reasonable alcohol and drug detection tests in a way not available to those who suffer from an actual disability by addiction or dependence within the meaning of the Act.
The only significant precedent with respect to the application of the Canadian Human Rights Act to the issue of drug and alcohol testing for employees of a federally regulated enterprise appears to be the decisions of the tribunal and the reviewing courts in Toronto Dominion Bank. As noted above the policy, under consideration in TD Bank included more sweeping provisions than those in the policy which is the subject of this grievance. Of even greater importance, the TD Bank policy did not concern employees in a highly safety sensitive industry. Moreover, to the extent that the TD Bank decision stands for the proposition that a tribunal reviewing a drug and alcohol policy for the purposes of conformity with the Canadian Human Rights Act must satisfy itself that there is a reasonable connectedness between the requirement of drug and alcohol testing and the operation of the employer’s enterprise, that case is well made out in the grievance before me.
The Arbitrator’s conclusions as relates to the application of human rights legislation are also consistent with prior analogous authority under the Ontario Human Rights Code. At the level of the board of inquiry in Entrop v. Imperial Oil Ltd., (1998), 98 C.L.L.C. para.145072, the Ontario Court (General Division), Divisional Court sustained the decision of the Human Rights Board of Inquiry reported in part, at (1996) 27 C.H.R.R. D/210. The Board of Inquiry in Entrop struck down parts of the drug and alcohol testing policy of Imperial Oil which involved a requirement of self-disclosure and reassignment for all alcoholics and drug dependent persons, even though their condition might be under control, and also struck down mandatory random drug testing. Significantly, however, the Board of Inquiry sustained the lawfulness, for the purposes of the Ontario Human Rights Code, of those aspects of Imperial Oil’s policy which involved reasonable cause drug and alcohol testing, testing which occurred post incident or accident, testing related to the certification of individuals as fit for safety sensitive positions and post reinstatement. Such testing was, in the view of Inquiry Commissioner Backhouse, permissible if the employer could establish that the testing was "… necessary as one facet of a larger process of assessment of drug abuse." I am satisfied that that standard is met in the case before me, where ample evidence is adduced by CN with respect to a broad and multi-faceted approach to drug and alcohol use and abuse in the workplace including what may fairly be characterized as a model of joint management/union cooperation in the administration of an EFAP program, as well as other initiatives such as the Rule G By-Pass agreement.
The drug and alcohol policy which is the subject of this grievance is not promulgated as an easy alternative to the humane and confidential detection and treatment of alcohol and drug abuse in the workplace, but rather as a considered policy which is complementary to other pre-existing and ongoing policies fashioned to deal with this complex and difficult issue. In that regard, therefore, when reviewed in light of principles emerging from the human rights cases, and in particular the result in Entrop, the Company’s policy cannot be found to be in violation of the Canadian Human Rights Act. If it can be said to be discriminatory as applied to persons who are disabled or perceived to be disabled by reason of an active alcohol or drug dependence, subject to the constraints of just cause, it is amply justified on the basis of a BFOR defence, and both the reasonableness and job connectedness of the policy are well established as relates to all risk sensitive positions.
For all of the reasons elaborated above, and in light of arbitration awards which have stood unchallenged within the industry for a substantial number of years, I am satisfied that it is reasonable for the Company, as a common carrier whose risk sensitive employees work in locations spread across Canada, often without supervision or with only partial supervision, to utilize drug and alcohol testing for employees who occupy risk sensitive positions in circumstances of reasonable and probable grounds for concern as to impairment, including post accident or post incident, post reinstatement in alcohol or drug related cases, and as part of a medical examination with respect to the promotion or transfer of an employee into a risk sensitive position. Such testing is but one of a number of information gathering mechanisms reasonably related to the legitimate business concerns of the employer with respect to the fitness for duty of those of its employees whose duties are highly safety sensitive. It may legitimately seek to gain such information both for the purposes of individual fitness assessment and as evidence which may be pertinent, along with other evidence, in matters of discipline, as well as for the broader purpose of monitoring drug and alcohol use and abuse in the workplace generally, subject to the reasonableness of any such request.
On the other hand, the Arbitrator is compelled to conclude, for reasons similar to those which applied to clerical bank employees in the TD Bank cases, that the Company has not demonstrated any reasonable job connectedness with respect to the requirement of drug and alcohol testing for employees who do not occupy risk sensitive positions. By its terms the policy applies to all employees of the Company, with the proviso that more serious consequences may flow for breaches of the policy by employees in risk sensitive positions. It is difficult to see upon what basis an accounts receivable clerk can properly be said to be subject to drug and alcohol testing by the mandatory surrendering of breath samples or bodily fluids, any more than the tellers and bank clerks in respect of whom, in the TD Bank case, the courts saw no demonstration of work connectedness or reasonableness insofar as mandatory drug and alcohol testing were concerned. There may, of course, be many "desk jobs" within the Company which are highly safety sensitive: without being exhaustive, examples such as traffic coordinators (yardmasters) and rail traffic controllers (dispatchers) come readily to mind.
In keeping with the principles in both Entrop and TD Bank, the Arbitrator cannot conclude that the Company has established a legitimate business interest or job connectedness which would reasonably require that employees occupying positions which are not risk sensitive, such as clerical positions, can be compelled under pain of discipline to submit to the intrusive and extraordinary requirements of alcohol or drug testing, save in the process of qualification for fitness to perform the duties and responsibilities of a risk sensitive position or as part of agreed conditions of reinstatement. Deviant drug and alcohol behaviour among employees whose work is non-safety sensitive can be adequately dealt with by the employer through traditional means of detection, treatment and, where necessary, the enforcement of discipline.
In short, therefore, with the exception of applicants for promotion or transfer to a risk sensitive position, to the extent that any part of the policy would appear to require the drug or alcohol testing of employees who do not occupy risk sensitive positions, it must be found to be discriminatory, and without justification, under the Canadian Human Rights Act and, by extension, to be contrary to the collective agreements whose terms can obviously not be construed as authorizing the exercise of management rights in a manner that would be illegal.
The foregoing paragraphs contain perhaps the most essential aspects of this award insofar as the application of the Company’s drug and alcohol policy is concerned, both as relates to the collective agreements and the Canadian Human Rights Act. However, there are, as related above in the positions of the parties, a number of other discrete issues raised by the Union and Intervener which need to be addressed briefly. If need be, these issues can be addressed more thoroughly in subsequent hearings concerning the interpretation or implementation of this award in the event of any disagreement.
The Arbitrator cannot sustain that part of the policy which purports to require an employee in a risk sensitive position to undergo drug and alcohol testing after a leave of absence of more than six months. While counsel for the Company suggests that that aspect of the policy would be applied in the circumstance of an employee whose leave of absence was drug or alcohol related, there is no language within its terms to that effect, and in that regard I must take the policy as I find it. As counsel for the Union and Intervener argue, on what rational basis can it be supposed that an employee who has been on a leave of absence, for example on maternity leave or leave for any purpose, should be scrutinized for drug or alcohol use by means of a breathalyzer or urinalysis upon their return to work? I can see none. By KVP standards any such requirement must be viewed as an unreasonable rule, unduly encroaching upon the privacy and dignity of the individual and serving no countervailing legitimate employer interest. The requirements to that effect within the policy must therefore be found and declared to be an unreasonable and unsupported extension of management’s rights which are contrary to the collective agreements. Nor would I find that they have any BFOR justification to the extent that they would apply to any employee who held a risk sensitive position immediately prior to the leave of absence in question.
I turn next to consider the issue of the policy’s provisions with respect to the blood alcohol content level, generally referred to as the BAC cut off. It will be recalled that under the policy for employees generally a positive alcohol test is found at .04 BAC, whereas in the case of risk sensitive employees the cut off level is .02 BAC. In approaching this issue, as with all aspects of the policy, the Arbitrator must consider whether, on a balancing of interests, the BAC standards established by the policy are reasonable. In that regard it appears self-evident that reasonableness is to be measured by reference to the relationship between a particular BAC level and the likelihood of impairment. There is sufficient expert opinion before the Arbitrator to confirm that concern for impairment is legitimate based on a .04 BAC, particularly where divided attention tasks are concerned, in a risk sensitive position. I must therefore find the .04 BAC to be a reasonable cut off level.
Conversely, there is no documented or scientific evidence to confirm that the .02 BAC cut off level bears any demonstrable relationship to impairment. While the Arbitrator understands and respects the concerns of the employer in relation to issues of alcohol consumption and impairment among its employees, established arbitral and judicial standards require that any rule or standard which the Company establishes in that regard be reasonable. After careful consideration I cannot conclude that the BAC cut off of .02 can be justified, in light of the scientific evidence presented, as meaningfully related to impairment for employees performing divided attention tasks. I therefore find and declare that the .02 BAC cut off level cannot properly constitute the violation of policy reasonably promulgated by the Company, and direct that the policy be amended accordingly.
Both the Union and Intervener dispute the provisions of the policy relating to the reinstatement of an employee found to have violated the policy. Specifically, they challenge the provisions of the policy which suggest that an employee must sign a continuing employment contract as a condition of being returned to work. Among other things they assert that to the extent that the policy would suggest that individuals are to negotiate such agreements without the knowledge or assent of their bargaining agent, the employer would be acting unlawfully, ignoring the bargaining authority of the Union, in disregard of long-standing Supreme Court authority such as McGavin Toastmaster and its related jurisprudence. They also submit that the requirement that an employee forego any pending grievances or complaints in respect of his or her discharge as a condition of an application for reinstatement undermines the grievance procedure within the collective agreements, and the collective bargaining rights of the individuals involved. Finally, they object that the possibility of conditions placed upon an employee for a period as long as five years is excessive.
There is nothing in law or in labour relations policy which prevents an employer from promulgating a general position to the effect that employees discharged for a certain offence will be reinstated only if certain conditions are met. Indeed, that is the essence of the terms of most reinstatement agreements which are negotiated with bargaining agents on behalf of employees who have, for example, been discharged for drug and alcohol related offences. I therefore find nothing improper or unlawful in those parts of the policy which involve a general declaration by the Company as to certain conditions which it believes must attach to any agreed-to return to work for employees properly disciplined for violations of the policy.
However, the Arbitrator agrees with the representations of the two unions to the effect that no reinstatement agreement can be negotiated individually with an employee, to the extent that such an agreement would purport to establish or alter that individual’s terms and conditions of employment. Such matters are to be negotiated exclusively with the certified bargaining agent. However a general reading of the policy makes it clear to the Arbitrator that the Company does not intend to exclude the bargaining agent from that process. To the extent that it might, it would clearly be in violation of the collective agreements. Also, it would not be proper for the Company to pre-condition an application for reinstatement, or mere discussion of the issue, on the withdrawing of a grievance or statutory complaint. Such an approach would negate the very grievance and arbitration provisions which the Company has undertaken to honour as part of the collective agreement.
Like Arbitrator McAlpine in the Esso decision, I would be inclined to find that a two year conditional agreement is reasonable, as a matter of a Company rule, and that conditions extending over a period of five years would be beyond that standard, at least in most cases. However, to the extent that the statements within the policy are understood as an "opening position" on the part of the employer as regards its own view of the content of properly negotiated agreements of reinstatement, I am hesitant to declare that it is improper or contrary to any provision of the collective agreements. Nor are the unions prejudiced, as in each case the duration of any conditions in a reinstatement agreement is a matter for negotiation with the employee’s bargaining agent.
There are two further aspects of the content of reinstatement contracts which appear to me to be questionable on their face. The first is that employees returning to work under a conditional agreement will be subject to random drug testing. For reasons well elaborated in prior jurisprudence, random drug testing has not been found to be a permissible exercise of management’s rights in Canada. It has, however, frequently been resorted to in negotiation between an employer and a union, and on occasion in the remedial order of an arbitrator, in dealing with the reinstatement of an employee discharged for drug or alcohol abuse. For the purposes of clarity, therefore, the Arbitrator would emphasize that the reinstatement employment contract envisaged by the policy as including random alcohol or drug testing would be permissible only to the extent that it was the subject of agreement between the Company and the employee’s bargaining agent.
Secondly, the Arbitrator is compelled to ring a cautionary note with respect to the requirement within the policy which would bar the possibility of negotiating a reinstatement agreement for employees with less than two years of compensated service. There is nothing to prevent the employer from advancing a position that in its view persons who have committed disciplinary offences, and whose service is of a certain limited duration, will not be considered for the possibility of compassionate reinstatement. I can see nothing exceptionable in such a position. However, substantially different considerations come into play where the discharge relates to a drug and alcohol policy violation by a person who is in fact disabled for the purposes of the Canadian Human Rights Act, in the sense that he or she is drug or alcohol addicted or dependent. Under the Act, justice is blind in relation to the duty of reasonable accommodation. The obligation of an employer, and for that matter of a union, to seek reasonable accommodation for a disabled individual does not operate on a sliding scale depending on the person’s seniority or longevity of service. It is an obligation of universal application from which neither party can exclude any employee based on seniority or service. Therefore, to the extent that the policy would purport to exclude junior employees from the possibility of accommodation, where such employees can be shown to suffer from a disability which is causally connected to their discharge, it must be found to be contrary to the obligations of the employer under the Canadian Human Rights Act, and contrary to those parts of the collective agreements which would prohibit discrimination on the basis of disability.
The Arbitrator cannot sustain that part of the policy involving alcohol consumption which would, assuming a .04 BAC, purport to automatically discharge an off-duty employee who might come onto Company property. The example cited by counsel for the Union is perhaps a useful one. On what basis can the employer assert that an individual who is off duty, and has been at a social function where he or she might have consumed a small amount of beer, resulting in a .04 BAC, a level which is lawful for the purposes of driving a motor vehicle, be automatically discharged for coming onto Company property to pick up a friend who might be coming off his or her tour of duty? I can see no valid employer interest which would justify a rule that is so draconian, and unrelated to any meaningful aspect of the employment relationship. The Arbitrator, therefore, sustains the position of the Union with respect to that aspect of the policy.
I turn next to consider that part of the policy, found at page 32 of the booklet, whereby employees are told that they are to "Manage potential impairment during working hours due to legitimate use of medications by contacting their physician or pharmacist if they can have a negative impact on performance." I can see nothing offensive in that aspect of the policy. It is merely a reminder, not inconsistent with previous rules, that employees are responsible to know the effects of prescription medications they are taking, and to obtain information in that regard if they are uncertain. I do not believe that the passage as written should be interpreted as requiring every employee to contact their personal physician every time they take prescription drugs. I think that a fair reading of the rule suggests that it applies in respect of medications which an employee knows or has reason to believe might impact their work performance.
The second aspect of the rule at page 32 states that "… those in risk-sensitive and specified management positions must investigate and report any concerns to Medcan, who will assess the situation and advise the Company of any requirement for modified work or temporary assignment;". Again, I can see nothing offensive in the that aspect of the rule, as it applies to safety sensitive employees. Does the involvement of the Company’s medical services provider make the rule unreasonable or offend against the balancing of interests as between the privacy of the individual and the safety concerns of the Company? I think not. If, for example, an employee in the position of a locomotive engineer develops a condition which involves occasional and unpredictable seizures or blackouts, it is plainly not sufficient, or responsive to the legitimate safety concerns of a public common carrier, for that individual to withhold that information from the employer and deal with any related concerns solely behind the closed doors of his or her own physician’s office. There are, quite simply, circumstances in which the privacy rights of an individual must yield to the public safety and business concerns of that individual’s employer. Moreover, to the extent that the information is to be disclosed only to the medical services provider, rather than to line staff or operations supervisors, confidentiality with respect to the employee’s condition and treatment by medication is maintained, and presumably would be disclosed only to the extent necessary to determine whether any adjustment is necessary in the assignment of the employee due to reasons of safety. That approach is consistent with the well-recognized right of an employer to ensure that its employees are at all times fit for service in a risk sensitive position. Obviously the Company’s exercise of these rights must be at all times in a manner consistent with any collective agreement provisions dealing with the same issues, as well as with the general duty of accommodation.
The Arbitrator further concludes that it is not unreasonable for the Company to suggest to employees who themselves suspect that they are developing a substance dependency that they should seek advice and follow treatment. The rule, so broadly stated, is little more than a restatement of cautionary advice which might well emanate from any number of public health authorities or a person’s own family physician. Obviously, if the advice so framed could be construed to be a rule, the violation of which would result in automatic discharge of an employee in safety sensitive service, it must be found to be unreasonable to the extent that it might violate the just cause provisions of the collective agreements, as well as the obligation of the employer to accommodate persons with substance dependencies amounting to a disability. Subject to that caveat, however, insofar as the statement in question is viewed as precatory rather than mandatory, it is reasonable under KVP standards. It may be, however, that the wording of this aspect of the policy would benefit from clarification.
The rules at page 33 of the policy provide that "any employee who has knowledge or suspicion of any breach of this policy is required to take the appropriate action to address the situation. Failure to do so may result in corrective action up to dismissal." The Arbitrator is unable to agree with the submissions of the Union and Intervener that this aspect of the policy is unreasonable. Firstly, there is no automatic disciplinary consequence for the failure of an employee "to blow the whistle". Consistent with notions of just cause, the rule is couched in terms of a possible disciplinary outcome, presumably depending upon the circumstances. In my view the rule is reasonable, and is indeed consistent with workplace realities. It is not uncommon for employees, concerned for their own safety as well as that of others, to report an individual whom they may have reason to know or believe is performing a risk sensitive job while under the influence of alcohol or drugs. The Rule G By-Pass agreement is itself one manifestation of a very similar rule, as is the discreet referral of a fellow employee to the EFAP program. While the Arbitrator well understands that there is in general human nature an aversion to "informers", there are some highly risk sensitive work settings where rules of silence and the protection of blatant offenders can have no place. In an industry where fatalities do occur, traditional rules of silence must yield in what may become matters of life and death.
Finally, the Arbitrator does not share the view of the Union and Intervener that those parts of the policy relating to searches and the involvement of CN Police are unreasonable. The essence of those provisions may be found at p. 37 and p. 56 of the policy booklet where the following two entries appear, respectively:
When a supervisor has reasonable grounds to believe that an employee is the care and control of a CN vehicle or equipment may be under the influence of alcohol or drugs, he/she must request that CN Police attend at the scene to take appropriate action (1-800-465-9239).
Where such employee is in the care or control of a motor vehicle or railway equipment, and CN Police are not able to respond within a reasonable time, CN Police will be responsible for contacting the local law enforcement agency.
CN Police will also be involved in any situation where a supervisor believes there are grounds to conduct a search for the presence of alcohol or drugs in violation of this policy or the law (refer to searches in these guidelines).
CN Police may also be available to assist supervisors in any situation under this policy.
CN Reserves the right to conduct unannounced searches for alcohol or drugs on company owned or controlled premises, including mobile equipment or vehicles. Searches will be conducted where the company has reasonable grounds to believe these substances will be present in contravention of the law or this company policy.
Supervisors will identify situations when a search may be warranted, (e.g., presence of drug paraphernalia, reported, visible or olfactory evidence of the presence of alcohol or drugs) and will contact CN Police for advice before taking any action. CN Police will assist in the conduct of searches wherever possible, or will advise on the need for the involvement of appropriate law enforcement agencies. Supervisors will not conduct a search themselves before consultation with experts.
With respect to searches, the language found at page 56 of the policy is consistent with the principles which have emerged from an extensive body of arbitral jurisprudence concerning the circumstances and manner in which searches are to be conducted. It is noteworthy, that CN’s searches are confined to circumstances of "reasonable grounds" and are to be conducted, insofar as possible, with the involvement of CN Police, or if necessary another appropriate law enforcement agency. The cautionary note that supervisors are not themselves to conduct searches without prior consultation with experts is a clear indication that the policy does not contemplate or authorize searches which are merely speculative, abusive or arbitrarily undertaken. The searches so conceived are consistent with the general principles endorsed by arbitrators in such awards as that of Arbitrator Swan in the Canada Post (Plant Security) case and the decision of Arbitrator P.C. Picher in University Hospital and London & District Service Workers’ Union, Local 220.
With respect to searches conducted by CN Police, the Arbitrator cannot accept the suggestion of counsel for the Union that these searches, assuming that CN Police are governmental actors subject to the Charter, are tantamount to unreasonable search and seizure contrary to section 8 of the Canadian Charter of Rights and Freedoms. If a CN police constable acts in his or her capacity as a peace officer in the planning and execution of a search, such requirements as may exist for judicial authorization within that context may apply. There is nothing in the language of the policy which, in my view, would necessarily suggest otherwise or purport to disregard Charter protections. There are, however, other circumstances in which the CN Police do not function as peace officers, but rather function in a capacity more akin to that of a security guard. If, in the exercise of those functions, the CN police constables concerned are not governmental actors, they are obviously constrained by the established arbitral principles which apply to any company agent or supervisor in the search of lockers, lunch boxes or the personal effects of employees on reasonable grounds. In the Arbitrator’s view there is nothing in the language of the policy, with respect to searches generally or the role of CN Police in particular, which can be said to be unreasonable, in violation of the collective agreements, contrary to any human rights legislation or the Charter. The submissions of the Union in that regard are therefore rejected.
As a final point, the Arbitrator must share the concern of counsel for the Union with respect to that part of the policy dealing with the post-reinstatement testing of employees. Counsel expresses the view that to the extent that the policy could be read as permitting the Company or Medcan to test for "drugs in the broadest sense", beyond the problem substance, it would provide the Company confidential medical information beyond what is appropriate for its legitimate business purposes. The Arbitrator would agree with that proposition. Obviously it would be improper and unreasonable for the Company to test the urine samples of a reinstated employee for such drugs as might, for example, reveal treatment for an HIV condition or some other medical problem of a confidential nature totally unrelated to the prior discipline or discharge of the employee in question. The Company has not argued that it seeks or would wish to exercise such a broad scope of information gathering, or that indeed it would have any right to do so. It would appear to the Arbitrator that this aspect of the policy may, like a number of others, benefit from redrafting for the purposes of greater clarification.
For all of the foregoing reasons the grievance of the Union and submissions of the Intervener are allowed in part, and disallowed in part. By way of summary and without derogating from any other findings herein, the Arbitrator finds and declares the following:
The Arbitrator retains jurisdiction with respect to the interpretation or implementation of any aspect of this award.
Dated at Toronto this 18th day of July 2000.
"M. G. Picher"__________
Michel G. Picher