View cases - Stewart McKelvey

- 15 -decisions dealing with random alcohol testing and any obiter comments dealing withalcohol testing made in the context of the validity of a drug testing policy or an aspectthereof.B. The Arguments and the Jurisprudence[30] As stated at the outset, the union’s position is encapsulated in two relatedpropositions: (1) arbitrators in Canada have overwhelmingly rejected mandatory, randomand unannounced drug and alcohol testing; and (2) sufficient evidence of a pre-existingdrug or alcohol problem in the workplace is a pre-condition to the enforceability of suchpolicies, unless the workplace qualifies as ultra-dangerous. Accordingly, the unionmaintains the application judge erred in setting aside the arbitration board’s decision onthe review standard of reasonableness.2011 NBCA 58 (CanLII)[31] The union’s assertion that arbitrators have overwhelmingly rejectedmandatory and random drug and alcohol testing is based, in part, on the Nanticokedecision where Arbitrator M.G. Picher concluded that: “As set out above, a key feature ofthe jurisprudence in the area of alcohol or drug testing in Canada is that arbitrators haveoverwhelmingly rejected mandatory, random and unannounced drug testing for allemployees in a safety sensitive workplace as being an implied right of management underthe terms of a collective agreement” (para.101) (emphasis added). The unionacknowledges that the quote refers only to random drug testing but goes on to insist thatthe quote applies equally to random alcohol testing. With great respect, I disagree andhere is why.[32] In Nanticoke, the arbitration board (M.G. Picher, Chair) was dealing witha grievance with respect to the propriety of the employer’s (Imperial Oil) policy ofrandom drug testing by the use of oral swabs for the detection of cannabis use, includingactual impairment, at its oil refinery. The policy applied to all employees and not justthose who held safety sensitive positions. Ultimately, the majority of the board upheld thegrievance and struck down this aspect of the policy. In so holding, the majority