In The Matter Of Grievance #16-10

(Random Deployment of Drug Searches/Interviews)

BETWEEN:

UNITED STEELWORKERS LOCAL 7552,

(the Union)

AND

AGRIUM VANSCOY POTASH OPERATIONS,

(the Employer)

A W A R D

For the Union: Gary L. Bainbridge

For the Employer: Gordon D. Hamilton

Before: Ken Norman

Hearing Dates: October 3, 4 & November 18, 2013 & August 21, September 15 & December 9,

2014.

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[1] By this grievance, of March 26, 2010, the Union challenges a random drug search/interview

process - utilizing drug detection dogs and follow-up interviews - at the mine site guardhouse.

This unilateral mandatory entry requirement for all persons accessing the mine site, with

disciplinary consequences for bargaining unit employees, was rolled-out just prior to the

grievance. Both elements of this policy present new arbitral questions. First, as was recently

noted in Suncor Energy, 2014 CanLII 23034 (AB GAA) (March 18, 2014) (Hodges), at para.

240, No decision in this country has allowed random drug testing. But, this isnt a testing

case involving the seizure of bodily substances; it is a search/interview case. Second,

apparently, the random deployment of drug detection dogs to screen for interview all employees

on entering a dangerous workplace has never been considered under the arbitral doctrine of

reasonableness as laid down in K.V.P. Co. (1965), 16 L.A.C. 73 (Robinson). [This doctrine lies

at the foundation of the Supreme Court of Canadas judgment in Irving Pulp and Paper Ltd.,

[2013] 2 SCR 458.]

[2] The challenged process has been deployed a couple of times a month at the guardhouse for

almost 5 years now. On a randomly selected day, Brigadier Security Services Canine Services

drug detection dogs and their Handlers show up in the guardhouse to the mine. As people,

including contractor personnel, managers and bargaining unit employees, enter the guardhouse

they are asked to stop for a moment while a drug detection dog sniffs them. [I heard testimony

from a Canine Validator and a Senior Handler as to the dogs quiet, unobtrusive and highly

accurate sniffing technique. By both accounts, the dogs are unerringly able to detect mere traces

of marijuana, hash, cocaine, crack, ecstasy, heroin and meth. I also viewed a demonstration

video.] The dog takes no more than 3 seconds if nothing untoward is sniffed. The dog does not

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need to touch the subject or his/her belongings. If the dog begins to indicate, it might take

another 2 or 3 seconds before it alerts by quietly sitting down.

[3] Gavin Rans, Manager, Human Resources, testified that, if as an individual enters through the

mines guardhouse a dog alerts, the subject is then invited to step into a private backroom.

Gary Carlson, Senior Handler with Brigadier testified that the other Handler, who would be

outside with his dog dealing with vehicles entering the site, may then be called-in for a second

confirming sniff of the subject and his/her possessions. A Brigadier Handler then asks the

subject to account for himself/herself, to empty his/her pockets and to consent to a search of

his/her lunch pail or other bag. Mr. Rans stated that, if an illegal substance is found or if the

person gives other reasonable cause, the next step is for the manager to advise of the need for a

trip to the city for a urinalysis lab drug test.

[4] The drug detection dogs have also been called in to the mine site to sniff personal lockers,

toolboxes and various items and areas underground and on surface including the sizable

construction zone. To be clear, this grievance has no bone to pick with such activities by the

Brigadier Handlers and their dogs. The unions sole challenge before me is with regard to the

search/interview process to which its members are randomly subjected on entering the mine

site.

[5] In that regard, this grievance also poses no challenge to the Employers Drug and Alcohol

Policy, implemented in early 2009 after a bargaining unit member discovered a narcotics syringe.

The syringe was found in a high-traffic surface area utilized by contractors [whose numbers on

site have grown from around 100 in 2010 to 2500 as of April, 2014], bargaining unit personnel

[450 employees] and others. The Union had been consulted in this Policys development

process. However, it was unilaterally rolled-out by the Employer. That said, the Union has not

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grieved the Policy. In 27 pages, the Policy sets out in detail the process for drug testing in three

situations; (1) pre-employment/pre-assignment, (2) post incident involving a serious accident or

near-miss [but, only where there is reasonable cause to believe that drugs and/or alcohol played a

part in the incident] and (3) where there is reasonable cause [based on an assessment of an

employees actions, appearance, and conduct to be confirmed by a Human Resources

Representative, with notice to the union.]

[6] The union stands on the proposition that the challenged random search/interview process

amounts to an unjustifiable violation of employees fundamental right of privacy. Gord

Bedient, Underground Electrician, testified that, as Local President up to 2012 and as A/Chair of

the Grievance Committee, he has heard a number of complaints from members about why

smoking weed on the weekend was any of the Employers business. Mr. Bedient stated that, the

Brigadier dog process doesnt detect impairment and goes well beyond finding weed or any other

illegal drug on the person or in his/her possessions. As he put it, I dont think Agrium needs to

know what I do on my own time.

[7] In cross-examination Mr. Bedient was asked to elaborate on his concern about this. In

response, he offered the example of an individual who had smoked a joint at a concert on a

Saturday night needing to explain himself to the Employer as a Brigadier dog might alert as the

employee passed through the guardhouse on a Monday morning. Senior Handler Gary Carlson

confirmed this supposition by telling the story of a Brigadier dog demonstration at the Mosaic

mine-site. A make-up pad was placed near a sample of marijuana and then in the pocket of a

safety vest. The dog alerted to the vest. The make-up pad was removed. Yet, a week later, the

dog still alerted to the vest. Thus, I am satisfied that, with regard to Mr. Bedients scenario, a

Brigadier dog would alert on clothing worn during the weekend concert, even if the individual

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had not toked-up but had simply sat beside someone who had. At the next stage of the Brigadier

process, comes the backroom interview with its call for an explanation.

[8] In the Unions submission, this adds up to an intrusion on the individuals reasonable

expectation of informational privacy concerning ones biographical core. In R. v. Cole,

[2012] 3 S.C.R. 34, the seizure by the police of a high school teachers work-issued laptop

containing child pornography was at issue. The Supreme Court declared that the accuseds

personal use of this laptop generated information that was meaningful, intimate, and organically

connected to his biographical core. Fish J., for the majority, explained informational privacy,

at para. 42: [T]he claim of individuals, groups, or institutions to determine for themselves when,

how, and to what extent information about them is communicated to others. [From, R. v.

Tessling, [2004] 3 S.C.R. 432, at para. 23, as noted infra, in R. v. Kang-Brown, at para. 13.]

[9] In Cole, on the vital point as to whether the accuseds subjective expectation of privacy was

objectively reasonable, the Court noted, at para. 45: There is no definitive list of factors that

must be considered in answering this question, though some guidance may be derived from the

relevant case law. As Sopinka J. explained in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293:

In fostering the underlying values of dignity, integrity and

autonomy, it is fitting that s.8 of the Charter should seek to

protect a biographical core of personal information which

individuals in a free and democratic society would wish to

maintain and control from dissemination to the state. This would

include information, which tends to reveal intimate details of the

lifestyle and personal choices of the individual. [Emphasis added]

[10] The relevance of a s.8 Charter judgment to the case at hand flows from the Supreme Courts

doctrine of Charter values, as first propounded in Dolphin Delivery, [1986] 2 S.C.R. 583. At p.

603, the Court establishes the principle that the common law ought to be developed in a manner

consistent with the fundamental values enshrined in the Constitution. [Endorsed by a

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unanimous Supreme Court in Bell ExpressVu v. R., [2002] S.C.R. 559 at para. 61.] The

fundamental Charter values of dignity, integrity and autonomy underpin the idea of privacy.

[Cole]. As the Supreme Court notes in Cole, though workplace policies and practices may

diminish an individuals reasonable expectation of privacy in, for example, his/her use of a work-

issued computer, an employee does not check his/her dignity, integrity and autonomy at the

workplace door.

[11] Arbitral doctrine has endorsed this general point for some time. Canada Post, (1988), 34

L.A.C. (3d) 392 (Bird), at pp. 411-412, declares that an employees right of privacy should

not be infringed upon by an employer in the absence of clear and unequivocal statutory authority,

clear and unequivocal contractual language or by a clear and compelling inference to be drawn

from contractual language. [See Loomis Armored Car Service, (1997), 70 L.A.C. (4th

) 400

(Kelleher) for a history of the arbitral doctrine supporting employee privacy rights.] An

arbitrator currently addressing the question whether a unilateral company rule intruding on

employees privacy is justified on the ground of reasonableness needs now to do so in light of

Charter values. Hence, I take my lead from the Supreme Courts discussion of employees

fundamental privacy rights.

[12] In Gord Bedients example of the employee attending a rock concert on a Saturday night,

toking-up or just being exposed to weed in the air yet, come Monday morning being asked by the

Brigadier Dog Handler for an explanation, I am satisfied that there is a serious intrusion on that

hypothetical employees reasonable expectation of informational privacy. Being required to

explain himself/herself in the backroom as a consequence of the Brigadier dog alert, intrudes on

a biographical core of intimate information about his/her lifestyle.

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[13] I note here, that this is the key Union concern. However, that being sniffed by a drug

detection dog amounts to a search in the view of the Supreme Court of Canada is implicated.

In the companion cases of R. v. Kang-Brown, [2008] 1 S.C.R. 456 and R. v. A.M., [2008] 1

S.C.R. 569, the Supreme Court found sniffs by drug dogs of a gym bag and a backpack to be a

search within the meaning of s.8 of the Charter. Deschamps and Rothstein JJ, concurring on

this issue, discuss the privacy implications of such a search, at para. 177.

The dogs positive indication allowed for a strong, immediate and

direct inference to be made about the contents of the appellants bag,

and this involved a certain intrusion on informational privacy, as

defined in Tessling, at para. 23. The right to informational privacy

protects biographical information, including the very nature of the

information. In a case involving this right, the relevant elements of

informational privacy include intimate personal details about an

accused, such as his or her having come into contact with a

controlled substance either as a drug trafficker, an illegal drug user

or a legal drug user (such as a user of marijuana for medicinal

purposes), or by being in the company of drug users. The very

personal nature of this information suggests that the appellant had an

objectively reasonable expectation of privacy.

[14] In light of my finding of an intrusion on employees reasonable expectation of informational

privacy I turn now to whether the Employers random Brigadier drug dog search/interview

procedure passes muster under the KVP oversight doctrine, as tailored to fit Charter values by

means of a two-staged analytical process. The KVP arbitral doctrine of reasonableness in

scrutinizing a unilateral company rule is akin to the common law. And, on the facts at hand,

through the lens of Charter values, this assessment of reasonableness entails whether such a

rule can be justified given that it intrudes on an employees reasonable expectation of

informational privacy based, as above discussed, on the fundamental Constitutional values of

dignity, integrity and autonomy.

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[15] Well after the Employers challenged random Brigadier Dog procedure was rolled-out, the

Supreme Court of Canada, in Irving Pulp and Paper, has had much to say about the KVP

principles in random drug and alcohol testing cases in the workplace as have a couple of

subsequent arbitration boards. Though the matter before me is not about such testing per se, it is

driven by a similar legitimate company goal of achieving a safe workplace by stemming

impairment. Both s.21 of The Mines Regulations 2003, and s. 3 of The Occupational Health and

Safety Act 1993, burden the Employer with a general responsibility in this regard.

[16] However, in the final analysis, at the second stage, testing is distinguishable from the

search/interview issue at hand. The Supreme Court made it plain in Irving Pulp and Paper, at

para. 50, that drug and alcohol testing by urine, blood or breath sample amount to highly

intrusive seizures of bodily samples and, as this Court has often reaffirmed, it is subject to

stringent standards and safeguards to meet constitutional requirements. The drug detection

dogs put no such highly intrusive seizure of bodily samples in play before me. In R. v. A.M.,

Binnie J. (McLachlin C.J. concurring), writing one of the plurality judgments, notes, at para. 74,

the fact that the sniff only communicates the presence of contraband and does not disclose

the nature or existence of other personal belongings is not without significance. It weighs in the

unreasonableness balance because, unlike the hand search a dog sniff is a very narrowly

targeted invasion of the suspects privacy interest. In R. v. Kang-Brown, Deschamps and

Rothstein JJ, comment, at para. 177, that the sniffer dog search technique utilized by the police

with regard to the suspects bag was only minimally intrusive.

[17] I will return to this distinction after discussing the meaning and legacy, to date, of Irving

Pulp and Paper with regard to understanding the bar of reasonableness set in KVP as it applies to

random drug and alcohol testing. In that case, the company had unilaterally implemented

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random Breathalyzer testing for 10% of the employees in safety sensitive positions in a

dangerous workplace. The arbitrator found that the companys expected safety gains from such

random testing were minimal at best, while the impact on employee privacy was much more

severe. Abella J, for the majority of the Court, upheld the arbitrators award, endorsing, at para.

31, the proposition that the dangerousness of a workplace had never been found by arbitrators

to be an automatic justification for the unilateral imposition of unfettered random testing

with disciplinary consequences. What has been additionally required is evidence of

enhanced safety risks, such as evidence of a general problem with substance abuse in the

workplace. [Emphasis added]

[18] The first arbitral award applying this test is Mechanical Contractors Association Sarnia,

2013 CanLII 54951 (ONLA) (Surdykowski), a case involving a Suncor pre-site access testing

policy. The evidence required to meet the Irving standard is discussed.

[127] The extent to which an employer can require an employee to

undergo alcohol and drug testing will depend on the degree of safety

sensitivity and demonstrated (not presumed) legitimate need in the

particular workplace. The evidence sufficient for the purpose will

depend on the circumstances of the particular case, but it must in any

event always include cogent direct non-anecdotal evidence from that

workplace. The employer must establish that the rule or policy

will probably improve workplace health and safety. Uncertain or

speculative health and safety gains do not justify a significant

invasion of employee privacy. The resulting threshold may be a

high one, but the Supreme Court of Canada in Irving Pulp & Paper,

Ltd. has made it clear that is the way it should be, particularly when

fundamental individual privacy rights are in the balance.

[151] Even in safety-sensitive workplaces the employer cannot

impose speculative alcohol or drug testing, which encroaches on

employee privacy in the interests of deterrence which is not

demonstrable necessary.

[19] In Suncor, the second post-Irving award, arbitrator Hodges, notes, at para. 330, that testing

for impairment due to substance abuse is one thing with regard to alcohol but quite another

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with regard to drugs. The consumption of alcohol days prior to coming to work would be

undetectable. Whereas, an employee who had ingested marijuana on their vacation several

days prior, and were no longer subject to any acute or sub-acute effect, could have a positive

urine test result with disciplinary consequences. Arbitrator Hodges concludes, at para. 343,

that the companys interest in red flagging an employee who has recently used drugs

does not meet the threshold of a legitimate business interest which would justify the significant

intrusion into privacy which a demand for urine entails So, though the Brigadier drug dogs

search is minimally intrusive, their Handlers post-alert call for an explanation from an

individual raises similar recent use concerns with regard to the overreach of the Employers

legitimate interests. This is in addition to the lifestyle intrusion on informational privacy

discussed above, brought into stark relief by Mr. Bedients recreational first or second-hand

smoke hypothetical.

[20] In support of its challenged random Brigadier Drug Detection Dog search/interview

process, the Employer tendered opinion evidence from Dr. Mace Beckson, M.D., Health

Sciences Clinical Professor, Department of Psychiatry & Biobehavioral Sciences, University of

California, Los Angeles. Based on a wealth of literature and experience on workplace impacts of

substance abuse, Dr. Becksons central point, at p. 5 of 73 in a letter of December 20, 2013, was

that as part of comprehensive, multi-faceted alcohol and drug policy, a random alcohol and

drug intervention strategy strengthens deterrence, improves detection, and decreases the risk of

incidents and injuries in the safety-sensitive workplace.

[21] Be that as it may, there is nothing in Dr. Becksons illuminating scientific report,

chronicling the cognitive and psychomotor performance impacts of substance abuse, that lowers

the threshold bar set by Irving for Canadian employers with safety-sensitive workplaces. As

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arbitrator Surdykowski notes in Mechanical Contractors, supra, para. 18 at para. 151, post-

Irving, the argument that a random drug intervention strategy strengthens deterrence is just not

on in this country at the first stage of the argument for limiting privacy rights. As Gary

Bainbridge, for the union, put it in argument, the element of deterrence as an aide to meeting the

threshold bar set by Irving of demonstrating cogent evidence of enhanced safety risks, such

as evidence of a general problem with substance abuse in the workplace - does not travel

north of the 49th

parallel.

[22] As the Supreme Court explains in Irving, at para. 121, deterrence enters the picture only at

the second balancing stage where, the assessment of the legitimacy of the random drug

testing of all employees including innocent employees must involve some balancing of the

employers interest in deterrence against the countervailing interest of employees in being treated

with dignity and respect. [And, even at this stage, deterrence is a tricky factor. The Supreme

Court notes, at para. 121, No doubt corporal punishment would also have a deterrent effect but a

free and civilized society puts limits on the value of deterrence.] Finally, Dr. Becksons

elements of improving detection and decreasing the risk of incidents and injuries also only come

into play at the second balancing stage of the argument justifying limits on fundamental rights

under a Charter values analysis. By the same token, the fact that the dogs brief sniffing

process per se is only minimally intrusive as per Deschamps and Rothstein JJs comment in

R.v. Kang-Brown, supra, para. 16, - is to be weighed in the balancing process along with the

more intrusive lifestyle-disclosing explanations that may be forthcoming in response to a

Brigadier Handlers call for an explanation in the backroom after a dog alerts.

[23] The prior threshold stage in the justificatory argument limiting rights under the Charter sets

the bar very high; calling for proof of a pressing and substantial objective demonstrably

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justifiable in a free and democratic society, for the challenged measure. Under Charter values

analysis, I take the threshold bar to have been set by Irving as evidence of enhanced safety

risks, such as evidence of a general problem with substance abuse in the workplace. [supra,

at para. 17] As arbitrator Surdykowsi notes in Mechanical Contractors, supra, at para. 18, this is

a similarly high threshold establishing, as he put it in para. 151, a standard of demonstrable

necessity. The second stage in a Charter challenge involves a multi-faceted

proportionality/balancing analysis, beginning with a test of rationality, then considering whether

the measure limiting fundamental rights is minimally intrusive and concluding with a final

balancing test. Under Charter values, post-Irving, it seems to me to follow that, once the

threshold is crossed, the second stage entails a balancing analysis as well. The foundation for

this discussion is the application of the KVP reasonableness criterion for assessing the validity of

a unilateral company rule. Post-Irving, post-Cole, post-Kang-Brown & A.M., with an employers

interest in safety in the balance with employees privacy rights, this involves an exercise in

weighing, in assessing the proportionality of the means to the ends.

[24] Thus, Dr. Beckmans elements of deterrence, detection and risk reduction must await my

primary consideration; as to whether the Employer has demonstrated by hard non-anecdotal

evidence safety risks due to drugs, such as evidence of a general problem of drug abuse in the

bargaining unit, as of March 2010 when the random Brigadier Drug Detection Dog

search/interview process began in the guardhouse.

[25] That said, it is common ground, that the mine is a safety-sensitive workplace with a history

of injuries and a couple of fatalities. However, none of these incidents have been linked to drug

abuse on the part of a member of the bargaining unit. To repeat, to meet the initial justificatory

threshold bar set by Irving, the Employer must lead hard evidence of enhanced safety risks,

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such as evidence of a general problem with substance abuse in the workplace. As arbitrator

Surdykowski noted in Mechanical Contractors, at para.127, this means cogent direct non-

anecdotal evidence from that workplace. In this regard, reports of two items of physical

evidence prior to March 2010 is all that I find to be relevant regarding this standard. As I noted

at the outset of this award, the Employers Drug and Alcohol Policy, was implemented in early

2009 after a bargaining unit member discovered a narcotics syringe. The next material fact,

pointing to the presence of drugs in the workplace, occurred in March 2010 with another piece of

drug paraphernalia being found on site. With that, the Employer implemented the random

Brigadier Drug Dog search/interview process at issue before me.

[26] Gordon Hamilton, for the Employer, also led evidence of an empty beer can being found

under a car in the parking lot in February 2010 and of an empty alcohol bottle being found on site

in March 2010. Then Human Resources Manager, Ron Jennings, was asked, in cross-

examination, how such empty cans and bottles were relevant. Mr. Jennings responded, It set a

path for us, told us there might be a problem. Mr. Bainbridge then suggested that drug dogs at

the gate wouldnt help with an alcohol problem. Mr. Jennings replied, Well, drugs and alcohol

are the safety issues. We were setting a tone for what is to be done in the workplace.

[27] With respect, the Employer clearly set that tone with its multi-faceted Drug and Alcohol

Policy, implemented in 2009, with support for addicted employees provided in its Employee

Family Assistance Program. Other than serving a general deterrent effect with regard to drugs,

the random Brigadier Drug Dog search/interview process at the guardhouse has nothing

legitimately to do with the abuse of alcohol in the workplace. And, as I have discussed, post-

Irving, deterrence is not available before me at the threshold stage of justifying any sort of limit

on employees fundamental informational privacy rights. In sum, finding two pieces of drug

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paraphernalia on site prior to the implementation of the challenged unilateral Employer rule, does

not a general problem make. It falls short of the threshold standard set in Irving of hard non-

anecdotal evidence of enhanced safety risks, such as evidence of a general problem with drug

abuse in this bargaining unit.

[28] Though this conclusion is the short answer to the case against this grievance, I now turn to

the post-grievance stories that unfolded in the hearing. Gordon Hamilton, for the Employer,

called a former employee under my order of confidentiality. This witness, A.B. testified that

he had been employed underground on E crew, but had worked on A and B crews, from

October 2011 to July 2013. He conceded in cross-examination that he had been around drugs

and alcohol all of his life. In July 2013 he was told that he faced termination for violating a last

chance agreement for drug and alcohol abuse. And, he was given an opportunity to resign that

he took up. Beyond what hed heard from others, he said that he actually had witnessed

marijuana being used by one to three bargaining unit production employees on two

underground crews. He didnt report these incidents, as, in his book, smoking a joint was not a

big deal. He said he had been asked to testify shortly before the hearing began. He expressed the

hope that the Employer might hire him back.

[29] There are credibility issues with Mr. A.B.s story. For, he made no report at the time. As

an employee with substance abuse problems, he thought smoking a little weed on the job was no

big deal. When he finally comes forward he names no names leaving me with little more than

mere anecdotal evidence. Nor does he account for his apparent current change of heart with

regard to the illicit incidents as to which he now belatedly bears witness. And, by his testimony,

I take him to be interested in currying favour with his Employer in the hope that he might be re-

hired.

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[30] Setting aside first, anecdotal evidence as per Mechanical Contractors and second, post-

grievance incidents concerning alcohol on the same irrelevance footing that I have spoken to

with regard to such pre-grievance stories, I learned of a handful of incidents concerning drugs,

drug traces or drug-contaminated paraphernalia being discovered on site over the years since this

grievance was filed. However, none of these incidents were directly linked to anyone in this

bargaining unit. I will say more about this in my conclusion. Further, there have been no

positive drug tests concerning bargaining unit members since the random Brigadier Dogs and

Handlers search/interview process was launched in 2010 at the guardhouse. Nor have there

been any occasions when illicit drugs have been seized in the random guardhouse process.

[31] Finally, a couple of weeks before this hearing began, the Employer retained Evident,

Corporate Investigations, to come on site to conduct multiple surface swipes of many locations

above and below ground utilizing DrugWipe 5F, an immunoassay detection device. Evidents

President, Dennis Birtles, testified with regard to a Case Report by Evident as to its findings of

trace residues of cannabis, amphetamines (including meth), cocaine and opiates on surfaces

routinely touched by bargaining unit employees, contractors employees and out-of-scope

employees. However, as the DrugWipe 5F investigative process involves multiple swipes of as

many as 20 surfaces with any given swipe kit, as such residues can accumulate, can remain

detectable on surfaces for some time, cant reveal who the user is, cant show whether the residue

has been transferred from one surface to another by innocent touch and cant show where the

drug in question was consumed - on or off-site - there is little hard evidence yielded to meet the

threshold test in Irving.

[32] The Union produced a responsive expert opinion, of April 28, 2014, from Dr. Steven

Richardson, Professor Emeritus, College of Medicine/Pharmacology, University of

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Saskatchewan. Dr. Richardson was cross-examined on this opinion. The bottom line, in Dr.

Richardsons opinion, is that the Evident Case Reports detection of molecules of drugs

on some surfaces in an industrial workplace may simply reflect the fact that these drugs are

rather common in our culture and molecules of them contaminate many objects in our

environment that are not directly involved in the use of recreational drugs.

[33] The Employer filed a rebuttal expert opinion from Dr. Beckman of June 1, 2014. While

conceding that the findings of the Evident Case Report fall short of proof that one or more

employees were under the influence of drugs while in the mine, they nevertheless provide a

risk assessment to guide risk management in the mine. The positive findings indicate an elevated

risk that employees have been using drugs, which, in turn, elevates the risk of impairment during

a work shift. Beyond this surmise that a recreational drug user poses a greater risk than a

teetotaler of being impaired due to on-site substance abuse, I am at a loss to see just how this

conclusion helps the Employer to clear the threshold bar in Irving.

[34] As noted, supra, at para. 28, I have determined, concerning the situation in the workplace

looking backward from the date of the grievance, March 26, 2010, that the failure on the

evidence to prove enhanced safety risks, such as evidence of a general problem with drug abuse

in this bargaining unit is sufficient ground upon which to sustain this grievance. I am similarly

disposed, should I be found to be in error in only looking backward from the date of the

grievance, in assessing the totality of the evidence to date with regard to this bargaining unit.

There is a demographic practical reason for this. For, though, in March 2010, bargaining unit

members constituted something like 4 out of 5 people who might have discarded the two items of

drug paraphernalia relevant to triggering the challenged Brigadier search/interview program at

the guardhouse, by April 2014 bargaining unit members constituted no more than 1 out of 5 or so

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people who might be said to have contributed to the physical evidence of drug use. This surely

makes the opinions proffered by Dr. Beckman even more of a stretch as counsel seeks to apply

them to the bargaining unit workforce.

[35] Given my conclusion that the Irving threshold test of demonstrating hard, non-anecdotal

evidence of enhanced safety risks, such as evidence of a general problem with drug abuse in this

bargaining unit has not been met as of the date of the grievance March 26, 2010 or,

alternatively, as of the dates of this protracted hearing from October 3, 2013 to December 9,

2014 - I need go no further. It is unnecessary and it would be gratuitous for me to discuss and

assess the various means/ends elements before me to be balanced in the analysis called for at the

second stage in post-Irving Charter values adjudication of the reasonableness of a unilateral

company rule concerning a random drug dog search/investigative process in a safety-sensitive

workplace. The justificatory case for the Employer simply doesnt get over the threshold proof

requirement onto this stage at any point in time.

[36] Before closing, I need to address the Employers current program of random lunch pail/pack

searches on exiting the site, as it became a point of argument. To be clear, the point of this

search process has nothing to do with drugs; it is about stemming a tide of pilfering. That a

search of the lunch pail, but not the squeezing of a pack, might reveal an illict substance

thereby intruding upon the individuals lifestyle informational privacy - is of no assistance to the

Employer. That the Union has accepted this program amounts to no sort of ceded ground in its

prosecution of this grievance. Gord Bedient testified that, though the Union was initially very

concerned about the intrusion that this random search process made into its members privacy,

once the Employer demonstrated that pilfering was a huge problem, the Union did not pursue a

grievance. In sum, randomly searching lunch pails and squeezing packs, on exiting the

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workplace, in order to stem a tide of pilfering is one thing. The random Brigadier Drug Dog

search/investigative process at the guardhouse on entry onto the site is quite another.

[37] In sum, intrusion on bargaining unit employees right to lifestyle informational privacy has

been established before me. The Employer has failed to justify its unilateral rule implementing

the random Brigadier search/interview guardhouse process as a reasonable limit on their

fundamental right of privacy. The need for the Employer to clear the threshold bar of

establishing hard, non-anecdotal justificatory evidence of enhanced safety risks, such as evidence

of a general problem with drug abuse in this bargaining unit, as required by Irving and

subsequent arbitrations has not been met. For the threshold bar to be crossed, random drug

detection dog searches/interviews of employees intruding on lifestyle informational privacy

rights, stand to be assessed, at this initial stage, by the same analysis as random drug tests. As

noted at the beginning of this award the latter random process has not survived such arbitral

scrutiny in this country. For the reasons that I have given this grievance is sustained. As the

Union has sought no more than this, I declare that the random Brigadier Drug Dog

search/interview process in the guardhouse to the mine site is a violation of the collective

agreement. The Employer is to cease and desist from this activity forthwith.

Dated at Saskatoon this

5th

day of January, 2015.

Arbitrator