A grievance by USW Local 5795 against the Iron Ore Company of Canada (that went to arbitration) was lost.
Arbitrator Wayne Thistle, Q.C, C.Arb. declared the company has a right to drug testing, union leader George Kean said, after the ruling came down last week. But, Kean stressed, it was not a total loss for his membership.
"The concerns we had around the drug testing were addressed by the arbitrator," he said. "Now, I want to make it clear, the Steelworkers have zero-tolerance for drugs and alcohol in the workplace, but we had concerns over this because there was no real policy in place, everything was very vague. The arbitrator certainly addressed that, which was our biggest concern. So it's not really a total loss for us."
While the arbitrator ruled in favour of the company, he did outline a number of conditions that must be met before the drug testing policy can be implemented.
"He has laid out guidelines that have to be addressed," Kean stated. "The whole grievance is not in violation because there must be clarification before anything can be implemented. So, IOC is stopped from implementing a drug policy without that."
Kean said, the union decided to grieve the policy because there were too many unknowns and that leaves his membership vulnerable.
"Number one they didn't even know what type of testing would be done; whether it was going to be urine, or swab or whatever," he added. "So, now this all has to be known in advance."
Kean said the company was far too vague in the beginning and that was the biggest problem.
"Of course when you file a grievance, you want it stopped," he said. "But, I guess this is the most we could have hoped for. At least our concerns have been addressed. If all these things were addressed originally, then maybe the union would have looked at it in a different light."
There are six guiding principles for the unilateral introduction of a company rule:
It must not be inconsistent with the collective agreement.
It must not be unreasonable.
It must be clear and unequivocal.
It must be brought to the attention of the employee affected before the company can act on it.
The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
Such rule should have been consistently enforced by the company from the time it was introduced.
I reach the same conclusion and that to implement certain aspects of the policy the following clarification must be provided:
The testing objectives and methodology must be stated.
The nature of and level of training to be provided to team leaders and other supervisors must be stated.
The circumstances, condition and/or observations which would lead to reasonable cause testing must be identified in a general way without a requirement of it to be exhaustive since each occasion will be evaluation on its merits.
To the extent the entire policy is not deemed in violation of the Collective Agreement, the grievance is denied; to the extent that clarification and amendment is required for certain aspects of Policy implementation, the grievance is upheld.
Wayne Thistle, Q.C., C. Arb.
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