View cases - Stewart McKelvey

- 24 -Canada, Local 0004, supra. Although the employer maintained that it had a right toimpose such a policy based on the “inherently dangerous” nature of its operation, thearbitrator noted that in a number of cases other arbitrators had held that such a findingwas not of itself sufficient to outweigh the privacy interests of individual employees andto support a regime of random testing. As a matter of fact, the arbitrator accepted theemployer’s evidence of an existing problem in the workplace and upheld the randomalcohol testing policy without offering an opinion as to whether a finding of “inherentworkplace dangerousness” would displace the need to adduce evidence of an existingalcohol problem in the workplace.2011 NBCA 58 (CanLII)[48] I could find relatively few cases in which an arbitrator upheld a grievancewith respect to the employer’s decision to implement random alcohol testing in theworkplace because of a failure to establish evidence of an alcohol or drug problem in theworkplace. The cases of which I am aware involved the trucking industry. But the factsof each case must be examined carefully. For example, Provincial-American TruckTransporters and Teamsters Union, Loc. 880, RE, involved truck drivers who transportedother trucks, piggy-back style, and the imposition of a policy of mandatory (but notrandom) drug testing by urine analysis. The policy was found to be unreasonable becausethe employer had failed to establish evidence of an existing alcohol or drug problem inthe workplace. A similar result was reached in Trimac Transportation Services-BulkSystems v. Transportation Communications Union, [1999] 88 L.A.C. (4 th ) 237 (ArbitratorK.M. Burkett). In that case, the arbitrator was asked to decide whether the employer’spolicy requiring all truck drivers to submit to random mandatory drug testing violated thecollective agreement. The policy was adopted in response to a US federal law requiringdrivers be tested. The union’s grievance was upheld. At the time the policy had beenadopted, there had had been no instances of impairment among drivers. Therefore,objectively speaking, there was no drug or alcohol usage problem to give rise to thereasonably held apprehension that drivers might compromise safety by reporting to workunder the influence.