View cases - Stewart McKelvey

- 18 -industry. The lead case appears to be Weyerhaeuser I. The precedential significance ofthis case cannot be ignored. See also Weyerhaeuser Co. v. Communications, Energy andPaperworkers Union, Local 447 (Roberto Grievance), [2006] A.G.A.A. No. 48 (QL)(Weyerhaeuser II), dealing with a policy which included post-incident drug testing andwhich policy had been adopted as a result of a large number of workplace accidents.[38] Borrowing liberally from the head note, the facts and findings inWeyerhaeuser I are as follows. The employer, a logging company, adopted acompany-wide policy dealing with issues related to substance impairment in theworkplace. The union filed a policy grievance, alleging that the policy violated thecollective agreement as it was discriminatory and unreasonable. At the hearing, theemployer sought a ruling on the union’s position that the employer was required todemonstrate that a substance abuse problem existed in the workplace in order to justifythe introduction of the policy. The employer took the position that it was entitled toimplement the policy in the absence of a proven substance abuse problem because it wasengaged in an inherently safety sensitive industry. Arbitrator C. Taylor held that theemployer did not have to prove that a substance abuse problem existed before adoptingthe policy because the company operated in a safety sensitive industry. Loggingoperations were dangerous, they took place in harsh and isolated environments, and workrelated serious injuries and fatalities were relatively high as compared to other industries.Therefore, the employer's operations constituted an industry that was inherently safetysensitive. This reality justified a high degree of caution on the part of the employerwithout the pre-condition of an extensively documented history of a substance abuseproblem in the workplace. The employer's position was upheld.2011 NBCA 58 (CanLII)[39] Weyerhaeuser I is also important because it offers a review of the relevantarbitral jurisprudence up to the date of the decision (2004). Specifically, three arbitraldecisions are fully canvassed: CN Rail, supra, Dupont Canada and Fording Coal Ltd. v.United Steelworkers of America, Local 7884, [2002] B.C.A.A.A. No. 9 (QL). The onedecision invariably cited in cases involving drug and alcohol testing is CN Rail.However, that case did not involve the validity of a policy imposing random drug and