Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.
Collection
Supreme Court Judgments
Date
2013-06-14
Neutral citation
2013 SCC 34
Report
[2013] 2 SCR 458
Case number
34473
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
New Brunswick
Subjects
Administrative law
Notes
SCC Case Information: 34473
Decision Content
SUPREME COURT OF CANADA
Citation: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458
Date: 20130614
Docket: 34473
Between:
Communications, Energy and Paperworkers Union of Canada, Local 30
Appellant
and
Irving Pulp & Paper, Limited
Respondent
- and -
Construction Owners Association of Alberta, Construction Labour Relations — an Alberta Association, Enform, Canadian National Railway Company, Canadian Pacific Railway Company, Via Rail Canada Inc., Alberta Federation of Labour, Communications, Energy and Paperworkers Union of Canada, Local 707, Canadian Civil Liberties Association, Alliance of Manufacturers & Exporters of Canada, carrying on business as Canadian Manufacturers & Exporters, Canadian Mining Association, Mining Association of British Columbia, Mining Association of Manitoba Inc., Québec Mining Association, Ontario Mining Association, Saskatchewan Mining Association and Power Workers’ Union
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 55)
Joint Dissenting Reasons:
(paras. 56 to 118)
Abella J. (LeBel, Fish, Cromwell, Karakatsanis and Wagner JJ. concurring)
Rothstein and Moldaver JJ.(McLachlin C.J. concurring)
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458
Communications, Energy and Paperworkers
Union of Canada, Local 30 Appellant
v.
Irving Pulp & Paper, Limited Respondent
and
Construction Owners Association of Alberta,
Construction Labour Relations — an Alberta Association, Enform,
Canadian National Railway Company,
Canadian Pacific Railway Company, Via Rail Canada Inc.,
Alberta Federation of Labour,
Communications, Energy and
Paperworkers Union of Canada, Local 707,
Canadian Civil Liberties Association,
Alliance of Manufacturers &
Exporters of Canada, carrying on business as
Canadian Manufacturers & Exporters,
Canadian Mining Association,
Mining Association of British Columbia,
Mining Association of Manitoba Inc.,
Québec Mining Association, Ontario Mining Association,
Saskatchewan Mining Association and
Power Workers’ Union Interveners
Indexed as: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.
2013 SCC 34
File No.: 34473.
2012: December 7; 2013: June 14.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for new brunswick
Labour relations — Arbitration — Collective agreements — Management rights — Privacy — Employer unilaterally imposing mandatory random alcohol testing policy for employees — Whether unilaterally implementing random testing policy a valid exercise of employer’s management rights under collective agreement — Whether employer could unilaterally implement policy absent reasonable cause or evidence of workplace alcohol abuse.
Administrative law — Judicial review — Standard of review of labour arbitration board’s decision — Employer unilaterally imposing mandatory random alcohol testing policy for employees holding safety‑sensitive positions — Whether arbitration board’s decision that harm to employees’ privacy outweighed policy’s benefits to employer was reasonable.
The Union brought a grievance challenging the mandatory random alcohol testing aspect of a policy on alcohol and drug use that the employer, Irving, unilaterally implemented at a paper mill. Under the policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. A positive test for alcohol attracted significant disciplinary action, including dismissal.
The arbitration board allowed the grievance. Weighing the employer’s interest in random alcohol testing as a workplace safety measure against the harm to the privacy interests of the employees, a majority of the board concluded that the random testing policy was unjustified because of the absence of evidence of an existing problem with alcohol use in the workplace. On judicial review, the board’s award was set aside as unreasonable. The New Brunswick Court of Appeal dismissed the appeal.
Held (McLachlin C.J. and Rothstein and Moldaver JJ. dissenting): The appeal should be allowed.
Per LeBel, Fish, Abella, Cromwell, Karakatsanis and Wagner JJ.: The legal issue at the heart of this case is the interpretation of the management rights clause of a collective agreement. The scope of management’s unilateral rule‑making authority under a collective agreement is that any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union must be consistent with the collective agreement and be reasonable.
A substantial body of arbitral jurisprudence has developed around the unilateral exercise of management rights in a safety context resulting in a carefully calibrated “balancing of interests” proportionality approach. Under it, and built around the hallmark collective bargaining tenet that an employee can only be disciplined for reasonable cause, an employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees’ privacy rights. This approach has resulted in a consistent arbitral jurisprudence whereby arbitrators have found that when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse.
A unilaterally imposed policy of mandatory random testing for employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace. The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise. It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences.
In this case, the expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe. The board concluded that eight alcohol‑related incidents at the Irving mill over a 15‑year period did not reflect the requisite problem with workplace alcohol use. Consequently, the employer had not demonstrated the requisite safety concerns that would justify universal random testing. As a result, the employer exceeded the scope of its rights under the collective agreement.
The applicable standard for reviewing the decision of the labour arbitrator is reasonableness. The board’s decision must be approached as an organic whole, not as a line‑by‑line treasure hunt for error. In this case, based on the findings of fact and the relevant jurisprudence, the decision was a reasonable one.
Per McLachlin C.J. and Rothstein and Moldaver JJ. (dissenting): There is agreement with the majority that the standard of review is reasonableness. However, there is disagreement as to the application of that standard. In striking down the policy, the board departed from an arbitral consensus that has attempted to strike a balance between competing interests in privacy and safety in the workplace. In so doing, it came to an unreasonable decision.
This case asks whether management’s exercise of its unilateral rule‑making power can be justified under a collective agreement. That question is one the New Brunswick legislature has delegated to labour arbitrators. Their decisions are entitled to a protected zone of deference in which the courts should not willingly enter as competing arbiters of labour policy. Reasonable people may well differ about the wisdom of the legislative choice to entrust labour arbitrators with a policy‑making function that potentially carries serious repercussions for public safety. Indeed, the fact that the public interest — not merely that of employer and employee — is relevant in cases such as this one may counsel a reassessment of that choice. But that decision is one for the New Brunswick legislature, not this Court.
Nevertheless, under reasonableness review there is a difference between judicial abdication and judicial restraint. To the extent a particular arbitral award is unreasonable — as this one is — it remains liable to being set aside on judicial review.
Where arbitral consensus exists, it raises a presumption — for the parties, labour arbitrators, and the courts — that subsequent arbitral decisions will follow those precedents. Consistent rules and decisions are fundamental to the rule of law. Therefore, arbitral precedents in previous cases concerning management’s unilateral adoption of a random alcohol testing policy shape the contours of what qualifies as a reasonable decision in this case.
The arbitral jurisprudence does not recognize an unqualified right of employers to unilaterally impose workplace rules on their employees outside of the collective bargaining process. Rather, the onus is on the employer to justify such rules based on compliance with standards established by the arbitral jurisprudence. In this case, the only standard in dispute was the reasonableness of the policy. The key question is the threshold of evidence that the employer was required to introduce in order to meet its burden to demonstrate reasonableness and thereby justify its random alcohol testing policy.
From a review of the relevant arbitral decisions, what emerges is an arbitral consensus that an employer must demonstrate evidence of an alcohol problem in the workplace in order to justify a random alcohol testing policy. That is the evidentiary threshold accepted by arbitrators who have upheld such policies and those who have struck them down. Thus, barring some explanation, whether implicit or explicit, for its basis for departing from it, that is the evidentiary threshold the board in this case should have applied. That is not, however, what the board did.
Though purporting to apply the test emerging from the arbitral consensus, the board elevated the threshold of evidence that Irving was required to lead in order to justify its random alcohol testing policy and offered no reason for doing so. The board required evidence of a “significant” or “serious” problem at the Irving mill. The standard reflected in the arbitral consensus, however, is evidence of “a” problem. The difference between the two approaches is obviously a marked one and it cannot be ignored. The board then required that the evidence of alcohol use be tied or causally linked to the accident, injury or near miss history at the plant. Again, there is no support for such a requirement in the arbitral jurisprudence. An employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action. To require such a causal connection is not only unreasonable, it is patently absurd. It is the application of this higher evidentiary standard which dictated the board’s decision to strike down the policy. The evidence was the decisive factor.
To be clear, it was open for the board in this case to depart from the arbitral consensus in reaching its conclusion, provided it had a reasonable basis for doing so. In so departing, it was thus incumbent upon the board to provide some explanation for its reasoning. Here, the board provided no explanation whatsoever — whether implicit or explicit, reasonable or unreasonable — for the new evidentiary standard that it applied. In the absence of a reasonable explanation for its novel test, the board must be taken as having misapplied the existing test, which in the circumstances of this case rendered its decision unreasonable.
The reasonableness of the board’s reasoning is further undermined by its inference that the risk at the Irving mill was not high based on the fact that only 10% of mill employees in safety‑sensitive positions were tested in any given year. The inference was unreasonable because it failed to recognize that: even low testing percentages can be highly effective; testing a higher percentage of employees in order to establish the reasonableness of a workplace testing policy would perversely incentivize employers and lead to a greater intrusion into the privacy of employees; and the threshold set by Irving is not out of the mainstream for random alcohol testing.
In sum, the board departed from the legal test emerging from the arbitral consensus by elevating the threshold of evidence Irving was required to introduce in order to justify a policy of random alcohol testing. In the absence of any explanation whatsoever, it is impossible to understand why the board thought it reasonable to do what it did. In the circumstances of this case, its decision thus fell outside the range of reasonable outcomes defensible in respect of the facts and law.
Cases Cited
By Abella J.
Referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18; Re United Steelworkers, Local 4487 & John Inglis Co. Ltd. (1957), 7 L.A.C. 240; Re United Brewery Workers, Local 232, & Carling Breweries Ltd. (1959), 10 L.A.C. 25; Re Public Utilities Commission of the Borough of Scarborough and International Brotherhood of Electrical Workers, Local 636 (1974), 5 L.A.C. (2d) 285; United Electrical, Radio, and Machine Workers of America, Local 524, in re Canadian General Electric Co. Ltd. (Peterborough) (1951), 2 L.A.C. 688; Re Hamilton Street Railway Co. and Amalgamated Transit Union, Division 107 (1977), 16 L.A.C. (2d) 402; Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 16 L.A.C. 73; Metropolitan Toronto (Municipality) v. C.U.P.E. (1990), 74 O.R. (2d) 239, leave to appeal refused, [1990] 2 S.C.R. ix; Charlottetown (City) v. Charlottetown Police Association (1997), 151 Nfld. & P.E.I.R. 69; N.A.P.E. v. Western Avalon Roman Catholic School Board, 2000 NFCA 39, 190 D.L.R. (4th) 146; St. James‑Assiniboia Teachers’ Assn. No. 2 v. St. James‑Assiniboia School Division No. 2, 2002 MBCA 158, 222 D.L.R. (4th) 636; Esso Petroleum Canada and C.E.P., Loc. 614, Re (1994), 56 L.A.C. (4th) 440; Canadian National Railway Co. and C.A.W.‑Canada (Re) (2000), 95 L.A.C. (4th) 341; Weyerhaeuser Co. and I.W.A. (Re) (2004), 127 L.A.C. (4th) 73; Navistar Canada, Inc. and C.A.W., Local 504 (Re) (2010), 195 L.A.C. (4th) 144; Rio Tinto Alcan Primary Metal and C.A.W.‑Canada, Local 2301 (Drug and Alcohol Policy) (Re) (2011), 204 L.A.C. (4th) 265; Imperial Oil Ltd. and C.E.P., Loc. 900 (Re) (2006), 157 L.A.C. (4th) 225; Imperial Oil Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 900, 2009 ONCA 420, 96 O.R. (3d) 668; Metropol Security, a division of Barnes Security Services Ltd. and U.S.W.A., Loc. 5296 (Drug and Alcohol testing) (Re) (1998), 69 L.A.C. (4th) 399; Trimac Transportation Services — Bulk Systems and T.C.U. (Re) (1999), 88 L.A.C. (4th) 237; Fording Coal Ltd. v. United Steelworkers of America, Local 7884, [2002] B.C.C.A.A.A. No. 9 (QL); ADM Agri‑Industries Ltd. v. National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW‑Canada), Local 195 (Substance Abuse Policy Grievance), [2004] C.L.A.D. No. 610 (QL); Petro‑Canada Lubricants Centre (Mississauga) and Oakville Terminal and C.E.P., Local 593 (Re) (2009), 186 L.A.C. (4th) 424; Communications, Energy and Paperworkers Union, Local 777 v. Imperial Oil Ltd., May 27, 2000 (unreported); Greater Toronto Airports Authority v. Public Service Alliance of Canada, Local 0004, [2007] C.L.A.D. No. 243 (QL); DuPont Canada Inc. and C.E.P., Loc. 28‑O (Re) (2002), 105 L.A.C. (4th) 399; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399.
By Rothstein and Moldaver JJ. (dissenting)
Esso Petroleum Canada v. Communications, Energy & Paperworkers’ Union, Local 614, [1994] B.C.C.A.A.A. No. 244 (QL); Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18; Canadian National Railway Co. and C.A.W.‑Canada (Re) (2000), 95 L.A.C. (4th) 341; Greater Toronto Airports Authority v. Public Service Alliance of Canada, Local 0004, [2007] C.L.A.D. No. 243 (QL); Rio Tinto Alcan Primary Metal and C.A.W.‑Canada, Local 2301 (Drug and Alcohol Policy) (Re) (2011), 204 L.A.C. (4th) 265; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Prestressed Systems Inc. and L.I.U.N.A., Loc. 625 (Roberts) (Re) (2005), 137 L.A.C. (4th) 193; Halifax (Regional Municipality) and N.S.U.P.E., Local 2 (Re) (2008), 171 L.A.C. (4th) 257; Re Monarch Fine Foods Co. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647 (1978), 20 L.A.C. (2d) 419; Trimac Transportation Services — Bulk Systems and T.C.U. (Re) (1999), 88 L.A.C. (4th) 237; Re United Steelworkers and Triangle Conduit & Cable Canada (1968) Ltd. (1970), 21 L.A.C. 332; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 16 L.A.C. 73; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Imperial Oil Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 900, 2009 ONCA 420, 96 O.R. (3d) 668; Imperial Oil Ltd. and C.E.P., Loc. 900 (Re) (2006), 157 L.A.C. (4th) 225; Fording Coal Ltd. v. United Steelworkers of America, Local 7884, [2002] B.C.C.A.A.A. No. 9 (QL); Continental Lime Ltd. and B.B.F., Loc. D575 (Re) (2002), 105 L.A.C. (4th) 263; Weyerhaeuser Co. and I.W.A. (Re) (2004), 127 L.A.C. (4th) 73; ADM Agri‑Industries Ltd. v. National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW‑Canada), Local 195 (Substance Abuse Policy Grievance), [2004] C.L.A.D. No. 610 (QL); Communications, Energy and Paperworkers Union, Local 777 v. Imperial Oil Ltd., May 27, 2000 (unreported); Provincial‑American Truck Transporters and Teamsters Union, Loc. 880, Re (1991), 18 L.A.C. (4th) 412; Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 S.C.R. 345.
Statutes and Regulations Cited
49 C.F.R. Part 382 (2001) (U.S.).
Canadian Charter of Rights and Freedoms .
Industrial Relations Act, R.S.N.B. 1973, c. I‑4, ss. 32(1), 55(1), 77(1).
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 48(12)(j).
Rail Safety (Adoption of National Law) Regulation 2012, No. 662 (N.S.W.).
Railway Safety Act 2005 (I.).
Authors Cited
Borack, Jules I. “Costs and Benefits of Alternative Drug Testing Programs”. San Diego: Navy Personnel Research and Development Center, 1998.
Brown, Donald J. M., and David M. Beatty, with the assistance of Christine E. Deacon. Canadian Labour Arbitration, 4th ed., vol. 1. Toronto: Canada Law Book, 2013 (loose‑leaf updated March 2013, release 29).
Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on National Health and Welfare, including “‘Booze, Pills & Dope’: Reducing Substance Abuse in Canada”, No. 28, 2nd Sess., 33rd Parl., 1987, p. 25.
Canada. Minister of National Health and Welfare. “Government Response to the Report of the Standing Committee on ‘Booze, Pills & Dope’: Reducing Substance Abuse in Canada”. Ottawa: Minister of Supply and Services, 1988.
Keith, Norm, and Ailsa Jane Wiggins. Alcohol and Drugs in the Canadian Workplace: An Employer’s Guide to the Law, Prevention and Management of Substance Abuse. Markham, Ont.: LexisNexis, 2008.
Mitchnick, Morton, and Brian Etherington. Labour Arbitration in Canada, 2nd ed. Toronto: Lancaster House, 2012.
Snyder, Ronald M. Collective Agreement Arbitration in Canada, 4th ed. Markham, Ont.: LexisNexis, 2009.
United States. Department of Transportation. “Current Random Testing Rates” (2013) (online: http://www.dot.gov).
APPEAL from a judgment of the New Brunswick Court of Appeal (Drapeau C.J. and Turnbull and Robertson JJ.A.), 2011 NBCA 58, 375 N.B.R. (2d) 92, 348 D.L.R. (4th) 105, 30 Admin. L.R. (5th) 269, 216 L.A.C. (4th) 418, 969 A.P.R. 92, [2011] N.B.J. No. 230 (QL), 2011 CarswellNB 356, affirming a decision of Grant J., 2010 NBQB 294, 367 N.B.R. (2d) 234, 199 L.A.C. (4th) 321, 946 A.P.R. 234, [2010] N.B.J. No. 331 (QL), 2010 CarswellNB 494, setting aside an award of an arbitration board, [2009] N.B.L.A.A. No. 28 (QL). Appeal allowed, McLachlin C.J. and Rothstein and Moldaver JJ. dissenting.
Daniel Leger, David Mombourquette and Joël Michaud, for the appellant.
Neil Finkelstein, Steven Mason, Brandon Kain, Byron Shaw and William Goss, Q.C., for the respondent.
Barbara B. Johnston and April Kosten, for the interveners the Construction Owners Association of Alberta, Construction Labour Relations — an Alberta Association and Enform.
Robert Dupont, Simon‑Pierre Paquette and Johanne Cavé, for the interveners the Canadian National Railway Company, the Canadian Pacific Railway Company and Via Rail Canada Inc.
Written submissions only by Ritu Khullar and John Carpenter, for the intervener the Alberta Federation of Labour.
Ritu Khullar, for the intervener the Communications, Energy and Paperworkers Union of Canada, Local 707.
Joshua S. Phillips and Karen Ensslen, for the intervener the Canadian Civil Liberties Association.
Norman A. Keith, Ailsa Jane Wiggins and Anna Abbott, for the intervener the Alliance of Manufacturers & Exporters of Canada, carrying on business as Canadian Manufacturers & Exporters.
Peter A. Gall, Q.C., Andrea Zwack and Melanie Vipond, for the interveners the Canadian Mining Association, the Mining Association of British Columbia, the Mining Association of Manitoba Inc., the Québec Mining Association, the Ontario Mining Association and the Saskatchewan Mining Association.
Andrew K. Lokan, Emily Lawrence and Christopher M. Dassios, for the intervener the Power Workers’ Union.
The judgment of LeBel, Fish, Abella, Cromwell, Karakatsanis and Wagner JJ. was delivered by
[1] Abella J. — Privacy and safety are highly sensitive and significant workplace interests. They are also occasionally in conflict. This is particularly the case when the workplace is a dangerous one.
[2] In a unionized workplace, these issues are usually dealt with in the course of collective bargaining. If an employer, however, decides not to negotiate safety measures before implementing them, and if those measures have disciplinary consequences for employees, the employer must bring itself within the scope of the management rights clause of the collective agreement.
[3] The legal issue at the heart of this case is the interpretation of the management rights clause of a collective agreement. This is a labour law issue with clear precedents and a history of respectful recognition of the ability of collective bargaining to responsibly address the safety concerns of the workplace — and the public.
[4] A substantial body of arbitral jurisprudence has developed around the unilateral exercise of management rights in a safety context, resulting in a carefully calibrated “balancing of interests” proportionality approach. Under it, and built around the hallmark collective bargaining tenet that an employee can only be disciplined for reasonable cause, an employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees’ privacy rights. The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise.
[5] This approach has resulted in a consistent arbitral jurisprudence whereby arbitrators have found that when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse. In the latter circumstance, the employee may be subject to a random drug or alcohol testing regime on terms negotiated with the union.
[6] But a unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace. This body of arbitral jurisprudence is of course not binding on this Court, but it is nevertheless a valuable benchmark against which to assess the arbitration board’s decision in this case.
[7] It cannot be seriously challenged, particularly since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, that the applicable standard for reviewing the decision of a labour arbitrator is reasonableness (Dunsmuir, at para. 68; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 31 and 42; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).
[8] In a thoughtful and meticulous decision of almost 80 pages, a majority of the arbitration board in this case, applying the arbitral consensus, concluded that the employer, Irving Pulp & Paper, Limited, exceeded the scope of its management rights under a collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol use. In my view, based on the board’s findings of fact and its reliance on the arbitral consensus for determining the scope of the employer’s rights under the collective agreement in such circumstances, the decision was a reasonable one.
Background
[9] Irving operates a kraft paper mill in Saint John, New Brunswick. Between 1991 and 2006, Irving had no formal policy with respect to alcohol and drug use at the mill. In 2006, it unilaterally adopted a “Policy on Alcohol and Other Drug Use” under the management rights clause of the collective agreement without any negotiations with the union. The policy imposed drug or alcohol testing for employees holding positions designated by Irving as “safety sensitive”.
[10] The policy contained a universal random alcohol testing component, whereby 10% of the employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. A positive test for alcohol, that is, one showing a blood alcohol concentration greater than 0.04%, attracted significant disciplinary action, including dismissal. Failure to submit to testing was grounds for immediate dismissal.
[11] Among the employees randomly tested under this aspect of the policy was Perley Day, a member of the Communications, Energy and Paperworkers Union of Canada, Local 30. Mr. Day was a teetotaller who had not had a drink since 1979. His breathalyzer test revealed a blood alcohol level of zero. The Union filed a grievance on his behalf challenging only the random alcohol testing aspect of the policy.
[12] The rest of the testing policy was not challenged. Under it, employees were subject to mandatory testing if there was reasonable cause to suspect the employee of alcohol or other drug use in the workplace, after direct involvement in a work-related accident or incident, or as part of a monitoring program for any employee returning to work following voluntary treatment for substance abuse.
[13] Mr. Day’s inclusion in the class of employees occupying safety sensitive positions was undisputed, as was the fact that the workplace represented a dangerous work environment. However there were only eight documented incidents of alcohol consumption or impairment at the workplace over a period of 15 years from April 1991 to January 2006. Nor were there any accidents, injuries or near misses connected to alcohol use. By December 2008, when the arbitration was heard, the testing policy had been in effect for 22 months, during which not a single employee had tested positive on either a random test or a test for reasonable cause.
[14] The absence of evidence of any real risk related to alcohol led a majority of the board to conclude that there was little benefit to the employer in maintaining the random testing policy. Weighing the employer’s interest in random alcohol testing as a workplace safety measure against the harm to the privacy interests of employees, the board therefore allowed the grievance and concluded that the random testing policy was unjustified:
The question is now one of proportionality. What needs to be measured are the benefits that will accrue to the employer through the application of the random alcohol testing policy against the harm that will be done to the employee’s right to privacy. If the random alcohol testing policy is to be justified, these must be in proportion. Here the employer’s scheme gets into heavier weather.
In a word, on the evidence I heard, I do not conclude that any significant degree of incremental safety risk attributable to employee alcohol use has been demonstrated to exist in this workplace. Taken with the low testing percentages, I believe it is likely that the employer’s policy will seldom, if ever, identify any employee with a blood alcohol concentration over the 0.04% Policy cut-off limit. I therefore see little or no concrete advantage to the employer to be gained through the random alcohol testing policy.
On the other side of the balance scale, I have to consider the employee’s right to privacy. Rights to privacy and to the related right of security of the person are important and prized incidents of Canadian citizenship. Reactions to invasions of them tend to be prompt, visceral, instinctive and uniformly negative. When the testing is random — that is, without articulable cause — as it is here, an already high bar is raised even higher. This considerably increases the burden of justification on the employer.
The invasion of that privacy by the random alcohol testing policy is not a trifle. It effects a significant inroad. Specifically, it involves a bodily intrusion and the surrender of bodily substances. It involves coercion and restriction on movement. Upon pain of significant punishment, the employee must go promptly to the breathalyzer station and must co-operate in the provision of breath samples. As we saw with Mr. Day, there can be an element of public embarrassment. Taking its results together, the scheme effects a loss of liberty and personal autonomy. These are at the heart of the right to privacy.
On the evidence, the gains likely to result to the employer from random alcohol testing rule[s] run from uncertain to exist at all to minimal at best. The inroads into employee privacy are significant and out of proportion to any benefit, actual or reasonably to be expected to be had by the employer and disclosed by the evidence. The employer has not been able to tilt the balance in its favour and therefore justify the imposition of random alcohol testing as a proportionate response to a demonstrated incremental risk caused by the attendance of employees at work with alcohol in their bodies. I therefore find that the random alcohol testing provisions of the Policy do not meet the KVP reasonableness test, and for that reason are unenforceable. That portion of the Policy therefore must be, and hereby is set aside. [Emphasis added; A.R., vol. IV, at pp. 71-73.]
[15] On judicial review, the board’s award was set aside as unreasonable because of the dangerousness of the workplace. The New Brunswick Court of Appeal dismissed the appeal. The court applied a bifurcated standard of review. It applied a correctness standard to the board’s analytical framework for determining the validity of the employer’s random alcohol testing policy and a reasonableness standard to the board’s factual findings. Using this segmented approach, the Court of Appeal substituted its own legal framework and concluded that no balancing of interests was required in a dangerous workplace, whether or not it was unionized. As a result, it held that employers can unilaterally impose random alcohol testing in any dangerous workplace, unionized or non-unionized, without having to show reasonable cause, such as evidence of an existing problem with alcohol use. It also found the board’s findings regarding the degree of dangerousness at the workplace to be unreasonable.
[16] In my respectful view, the Court of Appeal erred in disregarding this Court’s direction that decisions of labour arbitrators be reviewed for reasonableness and that deference be paid to their legal and factual findings when they are interpreting collective agreements. This misapplication of the standard of review led the Court of Appeal away from its required task of determining whether the board’s decision fell within a range of reasonable outcomes, and towards a substitution of its own views as to the proper legal framework and factual findings. It also led the court essentially to disregard the remarkably consistent arbitral jurisprudence for balancing safety and privacy in a dangerous workplace, and to impose instead a novel, unfettered and automatic remedy outside the existing consensus and expectations in the labour relations community about how these issues are to be approached under a collective agreement.
Analysis
[17] At the outset, it is important to note that since we are dealing with a workplace governed by a collective agreement, that means that the analytical framework for determining whether an employer can unilaterally impose random testing is determined by the arbitral jurisprudence. Cases dealing with random alcohol or drug testing in non-unionized workplaces under human rights statutes are, as a result, of little conceptual assistance (Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (C.A.)).
[18] It may be tempting to suggest that dangerous unionized workplaces should be beyond the reach of the collective bargaining regime, freeing an employer both from the duty to negotiate with the union and from the terms of the collective agreement. This suggests, Cassandra-like and evidence-free, that collective bargaining is the altar on which public and workplace safety is sacrificed and that only employers have the capacity to address these concerns.
[19] But the reality is that the task of negotiating workplace conditions, both on the part of unions and management, as well as the arbitrators who interpret the resulting collective agreement, has historically — and successfully — included the delicate, case-by-case balancing required to preserve public safety concerns while protecting privacy. Far from leaving the public at risk, protecting employees — who are on the front line of any danger — necessarily also protects the surrounding public. To suggest otherwise is a counter-intuitive dichotomy.
[20] And this without any evidence that dangerous workplaces that are unionized have experienced any, let alone a disproportionate number of, accidents resulting from collectively bargaining safety measures. It also assumes that no balancing is required at all once a finding is made that a workplace is dangerous. This not only negates any recognition of the significant privacy interests at play, it wrongly assumes that when there is no collective agreement, an employer is free to exercise its own discretion about worker safety. All provinces have legislation protecting worker safety, thereby restricting an employer’s wishes. And, as we saw in Entrop, even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace. There are different analytic steps involved, but both essentially require attentive consideration and balancing of the safety and privacy interests.
[21] As the board recognized, the only possible source of the employer’s asserted right to impose random alcohol testing unilaterally was the management rights clause in the collective agreement:
4.01. The Union recognizes and acknowledges that it is the right of the Company to operate and manage its business subject to the terms and provisions of this agreement.
The legal issue, as a result, is whether implementing a random alcohol testing policy was a valid exercise of the employer’s management rights under the collective agreement.
[22] When employers in a unionized workplace unilaterally enact workplace rules and policies, they are not permitted to “promulgate unreasonable rules and then punish employees who infringe them” (Re United Steelworkers, Local 4487 & John Inglis Co. Ltd. (1957), 7 L.A.C. 240 (Laskin), at p. 247; see also Re United Brewery Workers, Local 232, & Carling Breweries Ltd. (1959), 10 L.A.C. 25 (Cross)).
[23] This constraint arises because an employer may only discharge or discipline an employee for “just cause” or “reasonable cause” — a central protection for employees. As a result, rules enacted by an employer as a vehicle for discipline must meet the requirement of reasonable cause (Re Public Utilities Commission of the Borough of Scarborough and International Brotherhood of Electrical Workers, Local 636 (1974), 5 L.A.C. (2d) 285 (Rayner), at pp. 288-89; see also United Electrical, Radio, and Machine Workers of America, Local 524, in re Canadian General Electric Co. Ltd. (Peterborough) (1951), 2 L.A.C. 688 (Laskin), at p. 690; Re Hamilton Street Railway Co. and Amalgamated Transit Union, Division 107 (1977), 16 L.A.C. (2d) 402 (Burkett), at paras. 9-10; Ronald M. Snyder, Collective Agreement Arbitration in Canada (4th ed. 2009), at paras. 10.1 and 10.96).
[24] The scope of management’s unilateral rule-making authority under a collective agreement is persuasively set out in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 16 L.A.C. 73 (Robinson). The heart of the “KVP test”, which is generally applied by arbitrators, is that any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable (Donald J. M. Brown and David M. Beatty, Canadian Labour Arbitration (4th ed. (loose-leaf)), vol. 1, at topic 4:1520).
[25] The KVP test has also been applied by the courts. Tarnopolsky J.