Grievance procedure — Content of grievance — Drug and alcohol policy — Lengthy unchallenged practice of administering random breathalyzer tests — Union effectively waiving any objection to practice.
Arbitrability — Res judicata — Issue estoppel — Focus of Court of Appeal decision was application of Human Rights Code to individual complainant — Court not resolving issues of random drug testing, post incident testing or consent forms for purposes of collective agreement — Human Rights Code, R.S.O. 1990, c. H.19.
Arbitrability — Res judicata — Abuse of process — Drug and alcohol testing — Court of Appeal determining issues relating to discrimination contrary to Human Rights Code with respect to individual complainant — Consideration of permissibility of drug and alcohol testing policies for purposes of collective agreement not amounting to abuse of process — Human Rights Code, R.S.O. 1990, c. H.19.
[See Brown & Beatty, 2:3210; 2:3222; 2:3224; 7:6152]
Cases referred to
Entrop v. Imperial Oil Ltd. (2000), 189 D.L.R. (4th) 14, 2
C.C.E.L. (3d) 19, 37 C.H.R.R. D/481, 2000 C.L.L.C. Para. 230-037,
50 O.R. (3d) 18, 137 O.A.C. 15, 98 A.C.W.S. (3d) 418
Statutes referred to
Human Rights Code, R.S.O. 1990, c. H.19
PRELIMINARY AWARD concerning scope of grievance and jurisdiction of arbitration board.
M.A. Church, K. Stuebing, student-at-law, and others, for the union.
R.R. Wells, for the employer.
The union grieves the policy adopted by the Company governing employees in its products and chemicals division at its refinery at [page123] Nanticoke Ontario. In fact the Board is seized with twenty grievances including some nineteen individual or group grievances as well as the Union's policy grievance. Although one of the grievances, involving employee Gilles Lussier, involves actual discipline for a failed random test, we are asked to deal firstly with the policy grievance and to remain seized of all other disputes.
Among the aspects of the policy challenged by the Union are the Company's use of random, unannounced and not for cause alcohol and drug testing. The Union's policy grievance also seeks the elimination of "post incident" alcohol and drug testing. The policy grievance was filed on October 15, 2003. It followed the announcement of the Company's new policy which was communicated on May 21, 2003, to become effective July 1, 2003.
Certain background facts are not in dispute. The Company first introduced an alcohol and drug policy, which included random testing for both drugs and alcohol, in June of 1992. That policy, which was in effect at the Sarnia refinery, became the subject of extensive review by a board of inquiry under the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as well as by the courts, on judicial review of the decision of the board of inquiry. The vehicle for that review, which became extremely far reaching, was the complaint of employee Martin Entrop. Following the decision of the Ontario Court of Appeal (Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3rd) 18 (C.A.)). The Ontario Court of Appeal reviewed a number of aspects of the Company's alcohol and drug policy. Among its findings was the conclusion that random alcohol testing was not discriminatory contrary to the Ontario Human Rights Code. The Court nevertheless found that random drug testing, by means of urinalysis which could not detect impairment, was not permissible under the Code. As a result of that decision the Company continued to administer random alcohol testing by means of breathalyser tests but it no longer required employees to undergo random drug tests by means of urinalysis. The suspension of random drug testing was announced in a letter to employees on March 15, 2001.
The Company's position was clearly prompted by the ruling of the Court of Appeal. In its view the Court endorsed the random testing of employees, as reflected in its ruling with respect to the breathalyser test, but conditioned its conclusion on the premise that random testing must be able to detect impairment. It is for that [page124] reason that the random drug urinalysis testing, which cannot detect actual impairment, was suspended in March of 2001. However, as reflected in a subsequent letter to employees on May 21, 2003, the Company became aware that an oral fluid or saliva drug testing method could detect actual marijuana or cannabis impairment. The test involves the collection of saliva by placing an absorbent pad in the mouth. The Company is satisfied that administering random drug tests by means of a cheek swab, the results of which can reliably detect impairment, brings that test within the principle governing permissible random testing enunciated in the decision of the Court of Appeal in Entrop.
At the initial hearing the parties made a number of submissions to the Board concerning the scope of our jurisdiction in light of the decision of the Ontario Court of Appeal in Entrop and the history of the Company's practice as well as the Union's grievances. Specifically, counsel for the Company submits that we should not now entertain the Union's challenge to random breathalyser tests by reason of the extensive delay by the Union in challenging random alcohol testing. He notes that the practice went into effect in 1992, some years prior to the negotiation of the first collective agreement by the Union which is said to have occurred in December of 1996. From that time to the present no challenge was ever taken by the Union with respect to the permissibility of random alcohol testing under the terms of the collective agreement. Counsel submits that by reason of laches and undue delay the Union should not now be allowed to litigate a long standing practice which it has essentially accepted.
Secondly, counsel for the Company maintains that we should not entertain any challenge by the Union with respect to the concept of randomness in either drug or alcohol testing. He argues that the issue of randomness was dealt with by the Court of Appeal in Entrop, which held that random testing is permissible to the extent that it can detect impairment. He submits that by reason of the decision of the Court of Appeal, as well as the delay of the Union in bringing any objection to random testing, the bargaining agent should not now be allowed to litigate those issues before us.
Thirdly, counsel for the Company submits that we should not allow the Union to proceed with respect to its challenge of the issue [page125] of post incident testing, again to the extent that that issue was approved by the Court of Appeal in Entrop, and has been the subject of extensive delay in the bringing of any challenge to it by the Union.
Finally, counsel maintains that we should not hear the Union's objection to the manner in which the Company administers the signing of consent forms by employees under its drug and alcohol policy. The Company's objection in that regard is based entirely on what it characterizes as the undue delay of the Union in bringing that challenge.
Counsel for the Union acknowledges that there was arguably a failure by the Union to grieve promptly certain aspects of the drug and alcohol policy which are now the subject of its complaints. He stresses, however, that when the first collective agreement came into effect in December of 1996 the complaint filed by Martin Entrop was already well under way. He argues that it was not unreasonable for the Union to await the outcome of the Entrop complaint before itself formulating a grievance or grievances with respect to the Company's policy. Counsel submits that since the policy was in serious question, commencing with the interim decisions of the Board of Inquiry in 1994 and culminating in the decision of the Ontario Court of Appeal in 2001, the Union's decision not to proceed with a grievance against the policy is understandable.
Counsel for the Union further submits that we should not reduce the scope of issues in these grievances by reason of any ruling of the Ontario Court of Appeal. In that regard he stresses that the Court of Appeal did not deal with the right of the Company to implement drug and alcohol testing in light of the provisions of the collective agreement. Its focus was entirely on the alleged violation of the Ontario Human Rights Code made in Mr. Entrop's complaint. Counsel submits that in all of the circumstances the Board should not close the door at the outset on the Union's grievances by reason of delay. He argues that the suggestion by counsel for the Company that the Union is engaging in an abuse of process by relitigating matters already determined by the courts is simply not correct, as the issues which arise under the collective agreement are not necessarily those which were dealt with by the Court of Appeal in its focus on the Ontario Human Rights Code. He urges the Board to view the [page126] events leading to these grievances in an accurate temporal context, stressing that random drug testing was effectively struck down and suspended between July of 2000 and May of 2003, a period of time he submits cannot be held against the Union as causing delay with respect to that issue.
Having considered the submissions of the parties we consider that we are able to make rulings which will appropriately define the scope of the issues to be argued. Firstly, we are satisfied that it would be inequitable, and indeed inconsistent with the parties' own interpretation of the collective agreement, to now entertain the grievance to the extent that it seeks to challenge the administration of random alcohol breathalyser tests in the work place. We consider it significant that the Company has followed that practice since 1992. The practice was in place when the Union negotiated its first collective agreement in 1996. Given that the Union filed no grievance against that aspect of the Company's policy from 1996 until 2003, a period of close to seven years, we are satisfied that the parties must be taken to have mutually accepted that random breathalyser testing was acceptable under the provisions of the collective agreement. By essentially acquiescing in the long-standing practice of the Company in this regard, the Union must be taken to have waived any objection which it might have to that practice. We are therefore satisfied that the scope of the grievance before us does not extend to entertaining evidence or argument concerning the Company's long unchallenged practice of administering random breathalyser tests for the purposes of alcohol testing in the workplace.
With respect to the balance of the issues raised by counsel for the Company, we cannot accept the view that the decision of the Court of Appeal in Entrop should be viewed as having resolved in any conclusive way the issue of whether randomness in drug testing, even assuming that such a test can detect impairment, has been effectively ruled upon for the purposes of the collective agreement. Nor can we accept that the Court of Appeal purported to make any ruling in respect of post incident drug or alcohol testing for the purposes of the collective agreement. With respect to both of the foregoing issues the Court's focus was not on the collective agreement. Rather, it was entirely on the application of the Ontario Human Rights Code to the circumstances of an individual complainant who was an [page127] admitted alcoholic, that is to say an individual having the status of a disabled person, a status expressly protected from discrimination in employment under the Ontario Human Rights Code. With respect to the issue of delay, while we see some merit in the argument of counsel for the Union with respect to the parties awaiting the outcome of the Entrop complaint, and in particular the fact that the Company's random drug testing policy was suspended from July 2000 until May of 2003, we are inclined to reserve on the issue of the extension of time limits, allowing any ultimate determination in respect of that issue to be made in light of the fullness of evidence which may emerge during the course of the proceedings on the merits.
We stress that in coming to these conclusions we do not suggest that the decision of the Court of Appeal is entirely irrelevant and without value. The analyses and findings of the Court may, to some extent, inform the interpretation which is ultimately to be given to the provisions of the collective agreement, including such elements as the management rights clause and the unique language of Article 3.02 of the collective agreement by which both parties undertake to provide a work place environment in which employees "... are treated with respect and dignity." In the end, however, it is in the context of these and other provisions that the permissibility of the Company's drug and alcohol testing policies are to be assessed for the purposes of the collective agreement. To consider these matters is not to relitigate issues already determined by the Court, nor does it constitute an abuse of process.
For the foregoing reasons the parties are directed that the Board will hear and dispose of submissions on the appropriateness of randomness as a means of drug testing, as well as the post incident testing and consent form aspects of the grievance raised by the Union, among others. To that extent, therefore, the preliminary objection of the Company must be rejected, subject to the Board's reserve on the issue of delay in respect to these same issues. We also note that counsel for the Company does not challenge the Union's right to take issue with the Company's method of drug testing itself.
These rulings obviously are solely for the purposes of framing the issues to be argued. Our ruling should in no way be taken as commenting on the merits of the position of either party, both of whom retain the fullest ability to argue their positions on the merits of the matters which are properly before us. [page128]
In the result, the Board allows the objection raised by the Company with respect to the Union's grievance as it relates to any challenge of the administration of random breathalyser testing in the work place. For the reason touched upon above, we are satisfied that that practice has been effectively accepted by the Union and must be taken to be permissible under the terms of the collective agreement. We do not consider that the issues of randomness, post incident testing and the signing of consent forms were addressed for the purposes of the collective agreement by the decision of the Court of Appeal in Entrop and we reserve on the issue of the possible exercise of our discretion to extend time limits, a matter which may be more fully argued at the end of the day.