Newfoundland and Labrador arbitrator upholds drug testing after proof of use found onsite

Employer found shelter used for cigarettes, marijuana

Newfoundland and Labrador arbitrator upholds drug testing after proof of use found onsite

A Newfoundland and Labrador company’s drug testing of employees after finding evidence of marijuana use was reasonable and not in violation of the collective agreement, an arbitrator has ruled.

Corner Brook Pulp and Paper operates a newsprint paper mill. 

The facility is a large complex that includes a shipping area where newsprint is stored. The shipping area includes a wharf where ships are loaded by employees using clamp trucks to pick up and carry large rolls of paper weighing between 300 and 1,300 kilograms, as well as sheds where the rolls are stacked.

Due to the safety risk posed by the paper rolls and the clamp trucks, the shipping area had restricted access requiring authorization.

On Dec. 5, 2019, a safety supervisor was tipped off that shipping department employees were smoking in a shelter they had put up near the lunchroom. Smoking was strictly prohibited, so the safety supervisor investigated along with two other employees. They found that between the lunchroom building and the shed, someone had installed plywood walls to create a small, confined space partially sheltered from the elements, containing a light and a space heater connected to an extension cord.

The safety supervisor smelled an aroma that he believed included more than just cigarette smoke. He found two cans containing cigarette butts and what appeared to be marijuana roaches. He took the cans back to his office, cut them open, and found more roaches inside.

The discovery raised serious safety concerns for Corner Brook Pulp and Paper. The company believed that there was a violation of its drug and alcohol policy, so it demanded a swab drug test from all 21 employees on duty in the shipping department that day. A refusal would result in discipline and would be considered evidence of a breach, so all the employees complied.

Following the test, all the employees were sent back to work, as no signs of impairment were observed by management or the testing expert.

The union filed a grievance, arguing that it constituted unreasonable random testing and the company didn’t have grounds as there were no signs of impairment. It also said that the drug and alcohol policy was unilaterally implemented without its input and wasn’t part of the collective agreement.

The arbitrator noted that for a rule unilaterally introduced by an employer without the union’s agreement, it must satisfy the following requirements: it must not be inconsistent with the collective agreement, it must not be unreasonable, it must be clear and unequivocal, employees must be informed about it and the consequences of a breach, and it should be consistently enforced.

In the case of Corner Brook Pulp and Paper’s drug and alcohol policy, there was no evidence that it conflicted with the collective agreement — in fact, it complied with the province’s Smoke Free Environment Act, 2011 and the Criminal Code of Canada. In addition, the policy was clear and unambiguous and had been brought to the attention of all employees when implemented. There was also no evidence that the policy had been applied inconsistently, said the arbitrator in finding that the policy was reasonable.

The arbitrator also found that the testing was not random and employees could be tested for drugs in a safety-sensitive workplace if there was evidence of a drug problem at the workplace. The discovery of the marijuana roaches in the shelter was “some evidence of a drug culture taking hold in this safety-sensitive workplace,” the arbitrator said, noting that only employees on duty in the shipping department who were required to be capable of operating the clamp trucks were tested.

The arbitrator determined that the testing was reasonable and dismissed the grievance.

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