Teck Coal Limited ("Teck"), British Columbia's largest mining company, implemented a new mandatory random drug and alcohol testing policy in December 2012 in the province. The policy was presented in November 2012 for union review and the union lodged a grievance of the policy soon after.

The United Steel Workers applied to the arbitrator for an interim order that the new policy not be implemented until the arbitrator had made a decision on whether the policy itself was permissible. The union took the position that the employer had not demonstrated "the existence at the worksites of alcohol or drug-induced safety problems". The union said that demonstration of those existing problems was required by the decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving Pulp"). In that case, Canada's highest court ruled the company's imposition of mandatory testing was a violation of worker's rights.

In dealing with the union's application for an order staying the implementation of the policy, the arbitrator had to balance the irreparable harm that would result from violating the privacy rights of the coal miners against the irreparable harm that could result from the physical injury or death of the miners resulting from impairment in the workplace.

In May 2013, the arbitrator decided that safety should prevail over privacy and he refused to delay the implementation of Teck's policy.

The union appealed the interim decision to the Labour Relations Board ("LRB"). In February 2014, the LRB upheld the decision of the arbitrator in Teck Coal Limited, BCLRB No. B28/2014. The LRB noted in its decision that:

... in Irving Pulp the majority and dissenting judgments each considered and discussed what each perceived the correct arbitral consensus to be with respect to random drug and alcohol testing, for the purpose of determining whether the award at issue in that case was reasonable. However, the arbitral consensus itself was not under judicial review, only the award at issue. Furthermore, as noted in Irving Pulp, "arbitrators are free to depart from relevant arbitral consensus and march to a different tune", as long as they provide a reasoned basis for doing so...".

The merits of the mandatory random drug and alcohol testing policy will now be heard by the arbitrator for a final decision about the policy. In defence of its policy, the employer will introduce expert evidence. It seems that the experts agreed that the workforce "was not immune from the societal prevalence of alcohol and drug abuse", and that there was a "genuine risk of serious accident" that could be minimized by mandatory random drug and alcohol testing.

The employer's position is that the expert evidence it intends to call was not presented in other arbitration and court decisions on this issue. The employer argues that the Supreme Court of Canada in Irving Pulp left the reasonableness of drug testing policies to be determined on a case-by-case basis by individual arbitrators.

As a result of the LRB's decision, the arbitrator's consideration of new expert evidence may well result in an important precedent for the implementation of mandatory random drug and alcohol testing in safety-sensitive workplaces.

We will report to you further on this case as it progresses.

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