Teck Coal Limited v United Mine Workers of America, Local1656

IN THE MATTER OF AN ARBITRATION

BETWEEN:

TECK COAL LIMITED

(the "Employer")

-and-

THE UNITED MINE WORKERS OF AMERICA, Local1656

(the "Union"

)

Concerning a Drug and Alcohol Policy Grievance

AWARD

Before: J. Alexander-Smith,Sole Arbitrator

Heard March 3, 4, 5, 6,18, 19, 20, 25; April 22, 23, 24;May 20, 21, 24, 25;July 16,

:

18; August 18, 19,28,29,2014.

Counsel:

For the Employer:

For the Union:

Peter A. Gall,Q.C. and Andrea L. Zwack

Patrick Nugent

Witnesses:

With the agreement of Counsel, the names of bargaining-unit witnesses (whether

identified in exhibits or during viva voce evidence) by either the Employer or the Union have been

redacted in this award to preserve the individual's privacy in light of the sensitivity and personal

nature of the evidence presented during the course of the arbitration hearing.

For the Employer: Denise Thomson, Glenn Campbell, Glen Ross, Mike Barrie, Robin Sheremeta,

Robyn West, Ross Wilson, Dr. Louis H. Francescutti, Dr. Leo J. Kadehjian, Dr. Mace Beckson, Dr.

Guohua Li.

For the Union: Bargaining Unit Employee ("BUE")#1, BUE#2, BUE#3, BUE#4, BUE#5, Brent Bish, Dr.

Scott MacDonald.

1

INDEX

.

I.

INTRODUCTIO

N

....................................................................

.

...........................................................

5

II.

RELEVANT PROVISION OF THE COLLECTIVE AGREEMENT..........................................................S

•

Article

Article 2 Scope of Agreement...........................................................................................

Management of Mine.........................................................................................6

Article 14 Safety..................................................................................................................6

1Purpose of Agreement.......................................................................................S

6

Article

3

Ill.

RELEVANT MANAGEMENT POLICIES.............................................................................................S

Appendix C......................................................................................................................121

•

IV.

FACTUAL BACKGROUND.................................................................................................................S

•

CRO'sWork Environment..................................................................................................8

The Evolution of CRO Drug and Alcohol Policies..........................................................12

CRO's Random Testing Program.....................................................................................16

Testing Protocols..............................................................................................................16

Drug and Alcohol Testing Experiences at CR0..............................................................21

Random Testing Results...................................................................................................26

V

.

EXPERT WITNESSES.............................................................".........................................................28

•

Dr. Scott Macdonald........................................................................................................28

•

Alcohol....................................................................................................29

Illegal or Prescription Drug .................................................................30

s

CRO Testing Results...............................................................................31

Epidemiological Study Design..............................................................32

CRO's Injury Rate...................................................................................33

The Effectiveness of Random Testing in Reducing Workplace

Accidents.................................................................................................34

•

Dr. Guohua Li....................................................................................................................39

•

The Causal Relationship between Drugs Use and Occupational and

Accidents................................................................................................40

Use of Urine Tests..................................................................................41

Drop In Positive Random Test Results................................................42

Drug Testing Improves Workplace Safety..........................................42

Alcohol....................................................................................................44

•

2

•

CROs InjuryRates..................................................................................44

Other Risk Factor ..................................................................................45

s

•

Dr. Louis Hugo Francescutti............................................................................................45

•

Dr. Mace Beckson and Dr. Leo J. Kadehjian..................................................................47

•

Pharmacology and Toxicology of Substances of Abuse....................48

CRO's Random Testing Program..........................................................51

Performance Deficits...................................................................................S2

SUBMISSION OF THE PARTIES..................................................................................................................53

•

The Union..........................................................................................................................53

•

The Employer....................................................................................................................ss

IV

.

THE DECISION ............,...................................................................................................................59

•

Overview ..............................................................................................................................59

Punitive or Disciplinary Consequence ..........................................................................63

UnilateralIntroduction of Random Testing: The Irving Pulp Paradig .......................66

A

m

CRO's Work Environment...................................................................................................69

Evidence of a Workplace Problem with Alcohol and Drugs at CR0..............................69

CRO's Random Testing Results...........................................................................................79

•

Alcohol.....................................................................................................81

Drugs........................................................................................................82

•

The Proportionality Analysis..............................................................................................89

Appendix

A

..................................................................................................................................................97

•

List of Exhibits 1-74

8

.................................................................................................................................................118

•

Cases and Authorities Cited by the Union and Employer

C

................................................................................................................................................121

•

Teck Coal Limited Management Policy No. 27: Alcohol Policy (6 pages)

Teck Coal Limited Management Policy No. 28: Illegal Drug Policy (7 pages)

Teck Coal Limited Management Policy No. 29: Medicine Use Policy (7 pages)

3

Appendix

0................................................................................................................................................141

•

Exhibit 29:Teck Coal Ltd. CRO Drug and Alcohol Summary (2 pages)

•

Exhibit 45:

a) Random Testing Results2012 (2 pages)

b) Random Testing Results2013 (6 pages)

4

I.

INTRODUCTION

[1]

The Employer operates a number of coal m1n1ng ventures at various locations

throughout the world. It has approximately four thousand employees at 6 operating mines in

Canada; 5 in British Columbia {Fording River, Greenhills, Elkview,Line Creek and Coal Mountain) and

an open pit mining operation at its Cardinal River Operation {"CRO"), located near Hinton, Alberta.

In 2013, CRO had approximately 340 hourly employees and 100 staff.

[2]

It is at the CRO location that the substance of this grievance arose, filed May 14th, 2012, in

response to the Employer's introduction of a mandatory random drug and alcohol testing program

upon members of CRO's bargaining unit {and others) in May 2012.

[3]

Although the grievance includes both a group and a policy grievance [Exhibit 3] by

agreement only the policy grievance was advanced at the arbitration hearing and is the subject of

this award. The parties otherwise had no objection to the jurisdiction of the arbitration board {the

"Board") to hear and determine this grievance. All time limits applicable to the release of this

award were expressly waived by the parties.

[4]

The hearing required 21days of testimony and argument both in Hinton and in Edmonton,

Alberta, over a 6 month period. During the course of the hearing, 16 lay and expert witnesses

testified before the Board and 74 exhibits were entered on the record, representing many hundreds

of pages of business records, studies, and other documentary evidence and are listed at Appendix

A.

[5]

The cases and authorities cited by the parties are listed at Appendix

B.

[6]

All of the materials, testimony and authorities presented during the course of the hearing

have been reviewed and carefully considered in determining the merits of this grievance. I have

endeavoured to provide a reasonably detailed overview of the most salient details of that evidence,

which is summarized below.

II.

Article

It is

RELEVANT PROVISIONS OF THE COLLECTIVE AGREEMENT

PURPOSE OF AGREI! MENT

I

l

h

e

I

ntent of the pArties11nd the purpose ofthis Agreement

t

)

preserve and cont

i

nue

the harmonious relations exis!ing between the parties; to insure peaceful adjustment and

settlement of gricv mces, claims,disputes and differences which may arise between the

Ernp!Clyer and its employees represented by the Union; to prevent stoppage and

interruptions of WOI k, strikes and lockouts; and to establish wages,hours and working

'

corlditions which sh rll prevuil during the term hereof fur tho employees covered by Ibis

Agreement.

In this Agreement, wherever the masculine gender is used, the feminine shall also apply.

5

Article 2

SCOPE OF AGREEM :NT

2.0

I

This Agreement covers all employes of the Bmploycr hired fur its mining operatioM at

Cardiml! River Opurations excluding thoe cmplo

Article.

ycs

.

d

signated in Section 2.02 of this

2.02

The following classif-Ications are excluded from this bargaining unit:

(a)

(b)

(c)

Ofllce staff, unit fon•mcn, safety und s curity personnel, urvoyors and rudmcn,

janitor. lab tel'hniclmls, environmcmtalists, and,

Those exercising managerial functions and those employed in u confidonrhd

cllpnoity in 1111Utcrs rel11ti ng to labour relations.

Except

facilities nnd

w

here ft is

r

)

eoessary to Instruct compny employ cs, test equipment and

I

n

l

h

o

oac

of cmergcncy, for

e

nw

n

"

11l

n

a!\erial pc:rsonnel will

not perform work or opcrute equipment normally performed by employeos

overed by this Collc tive Agreement,

2.03

(a)

J'h

cll\

for hi

min11site:

c

j)

followin!l Qspl!l5

u

rthiJ Collecrlve

or, bo

WOI'K perforlllcd for Cs

A

.Q re mc

n

t

s

h

a

ll govern

t

h

condi

t

ion$ of

roVidos

l

o

yl1>en!wt\lch u uontm

o

t

s

u

o

r\lractor,

tlin

a

ulsnee, or

River Opu

r

ra

o

5

fc

r

c

p

s

em ployru

r

n

l

r

u

tions Ill

t

he

(I)

wnjjc rates in Exhibit "A'' ( sa minimum)

(fi)

(Iii)

snfety rc ;:ulations

cessation of work (Article 6)

(iv) adjustment of grit:vances (Article

5 or cqulvnfenl procedures)

(v) scope of Ag1 emcnt as per Article 2.Q2

·

(b)

c

o.ur

a

o

t

o

r

s,

s

ubc

o

n

t

mctors, nsslgnc

e

s

n

or trRn

ui norm lly perfol'meby the

be exempt rom A1tio 2.03 i}nbovc.

fereeengaged bC5rdi nal River

O

porotiOJl

s

to pe

r

f

or

m

e

eeializCi;l work

employees

MCII

r

d

l

nu

l

Ri vo

r

O

p

l'!l

l

ons

h

n1

1

t

l

e

((

Al'ticle

3

MANAGEM ;N'r OF MINE

The management of the operation is vsstcd i11 the Employer except tnQt thiright shall

not supersede: any provisions of this Agroomc:nt.

SAJ'I!TY

t\

t

•

tlclc 14

01

AJlj)r

)4

.

o

prln

t

o

s11tilty devices nod pmot\ci)J for the p11tpose ofM.;cting the employee from

J

njur')'.nceldunt or linhu<ILhy r;onditirms tlf work h ll be employed.

14.02

T

h

e

P. mploc

nt

r

h

t

lltllcil ntuht nn accident

p

r

c

v

o.ntlon committee comprised of

to be knvwn as the "Ocov p llonal!lealth

re

(

!f

c

o

n

li vs \lf 1hc J:!mploycr 1111d the Unio

n

u ucl

S

:ofc

t

y

C

o

il

t

m

i

U

co''

.

14.0)

1

w

u

l

t

•r l,

o

tltwd norc

<

•

tlt h;

l

the pmtlc'

l

:

or

<">

t

illl\grccll1l\11

1

(()

Sh 11

U

l

ll lina·s C(lll

l

j\

l

y

wllh

l

h

'"

:

tli.

h

l

nt pi

U

Vt:ntilll\

1

•

nl

1

11i

u

os thC)'

llw1a

lllgll hll nnd Sal'c

p

r

tui1

1

t

l

1e

Ool\111\luinndll'-11)',

!15

s

t

by

t

h

e

r

e

l

v;nll

1

v

1

11lh'n in

l

h

r

mv

i

t

w

r

1

\

.

nd.,;ut'clrcyulnllons

l

u

A

t

ltu

t

o

tl

wy th"

.

m

p

l

oyor h t l thu OQo.:ull,ltlon

n

L

y

Coll11nh tqc. 1\ n) r l\

HIOO

1

.

llfl1hu

p

ll rt ,,r^Ju^ln

V

ll1Jli11)'C 10 f1•r

ill h:t il'lllll(.,,l

li

>

ml

n

UllS;l(e

:

IC

\

iO COIIlri\W

I

o

fll\1,

\

l

mid

f

\' 11

1

11 1\\ shllll

11

,

n

1

t

1

··"'''

d

o

l

'

tll

c

1\yr

r

1\ICIU

,

No

t

'

111111 mt rnt

p

O

)'

C

•

bo

d

tSCiplh

v

d

ft>

r

uch rofuul.

6

14.04

These members of the Occupationul Health and Safety Committee shall be duly elected

by thu!r fellow ernployoes.

14.0S

The Occupational Hea

ba

trnsportK OHJflloyccs to Md from the min!1$ltc.ihc Employer shall supply1h11 Union

wlth 11 IIICl<lthly mechunlaollnspcetlol• ccrtincate of each bus.

l

th ami S!llety Committee shIJ 111Ccl once Quch month, Thct•c

w

ill

u

110mplcte fnspeotlon tour

o

cach operation and abo 31

l.

uspcclion of eGc!J bus that

14.06

The Sflfety Steward on shift shalllmme!llately be notified ofallaccid nts,und:

(a)

(b)

(o)

Shall have tho right to lnvestl

requiring first aid treatl1lcl\t olllc•

; ate those nucidcnts involving personal injury

·

thnn for minor injurie .

Shall havo the right to investigate all major accidents or serious happenings in the

op ration

.

Safety

all time spu.nt investigating aceidem. erloua htlppening5,

mcoting

S

t

ewards sh111l be paid by the l!mployer

,

111

thol

r

re

;

u

lar olllSslfied rate for

l

nspecllon toun Uild

s.

14.07

Tho Chaltn1

211 ofth o: Qotll .jliHionnl Health and Snfety Commlllee will alternate betw\! n

the Unloo nnthe !lmploy r's rupre!lfln!atlve c:vwy six {6) months.

14.08

One copy ofthc mlnutl)s of the l\1onthly meetinsh1.11l bo retained at the Mine Office,

a

s

:cund copy forwardlld to tho <•ct Union and a third copy forwardod to the appropriate

L

j!QVernmcnt!lla"ency.

14.09

(a)

Where any unsafe condition jy fo1111d Ot' reported !o any Sufety Steward on shil\;

thnt Snfcly Sruward will have the right to lnspoct the situutlon nlong with tho

supervisor.

(b)

Wt1n any Si!>n

nion mom

l

ficant un efc qondillon Is reported, it shlibo investlgnte-d by a

U

b

11r of the Joi111 Oocupational H lth and Su!bty Commillee and 11

Supcrvlsor. If the Com

l

!'lhtoumu

n

nnd the Sup<JrVi$or \l(l not lljlree lhat thiJ

1r ny, is to be t ken, "flUilllnod lr!dividu< l

rective u10tion liS

condition

I

s

un• fe und what rcnfedy,

shl

l

be enlied hi to llsscss the cunditlon nnd rucommend Sl1ch co

r

may be necessary.

{c)

A workur rnay refuse

t

o

do M)' purlluufnr act. or surleofii.Cts at work whioh hu

hM

su

t

'ftcltmt grouns to b111ic

v

pre dRngcrou.s to his henlrh or snfcty, the hcKhh

wid snl'cry ufhis l.lo-workt.:rs or tiny

ircurnstnr1tcsno disciplinary llC\ on will be tQkOill\llaipsl hi1

refuses ro p rforn11•1s sslgoud llu

u

r

le on th

e

mh1e site Rud

l

11 su h

n. !fun employee

t

les wilhout 5\lfficicnt gr l ndmay

b

st11Jjwl to dlsclp

co

l

ino. AI the lime of'rllf\

1

sa

l

1

h

e

employee must pcclf'y the unsafo

n

d

i t

0

1

which formed n bu ls for hircfua

l

to work.

14.10

II stl!rlcfllt'd set of signals ba

by duprpJ\lUil dump $Uporvisors while performin!!their job, Truck ddvers to be

w.:t.:il on !h.ese slgnuls.

dop·tod within each Umpfoycr'sjuri$diction 10 be employ d

r

i

n

s

t

r

'

14.11

1

\

II

c

r

ew 11'1

1

hold

,

Suf ty nl ctlnr,IC11st one

lf rhu '1\rCtnl/ Ulltl Snruty w rd 3111111 drnw

ll opflonunity

o

caltndar month at the boginning

or

a

rlliJIIJ111rly

th\

fl<.!rta lilln.t tu

The

s

h!l1IUId 11

h

l

.

'

Ufl 11\0

1

1genda for

·

11 ,·,.lillll.· 'l'hu mucilng will prnvldnil c'nnloyouwlih

R

l.

o

.

nsk quustlon

I

lth nncJ S11foty 'l'hmuctinwill Iiili l' ud onu hpur In dumtro"

.

l

'or rn n 11l' Sn

l

c

t

SlewRrd will rcconllltc mlm11of' the lt'ICU\Inr,.

7

14.12 Accompanying Injured i:lllploy\l

S

Whn an employee is ordered by tho mnnag ment to uocompany an

employee, he shall be compensated at his reg11lar rate for tlme necessnrlly lost.

injured

(u)

l16wcver for

e

i

ght (8) hour s if\ omp!oy c5, in the evomthllt an t!mployec !s.so

(b)

urdered d'uring tho

I

list hulfofhts sh

i

ll, he $hall not be rllt]ulred

t

·

o

return to the

minfur

the 1\tll shifl.

twelve 12} hour hln emp

ring Ill•: llllthird

the alanct or

hlft.

!he balance: of the shitl

1111d shnll receive paymr.11t t hlres lur rate of

F

o

r

(

l

oyees, in the veul that an mp

"

loyoc Is

o

ordered

d

u

o

f

Il

l

s

5h

l

f1, he shall

t

i

m

he n:quird 10 return to the m nc: for

b

the shlfl nnd shall rt>coive pa)'tnent at his reguiHr rote forthe full

14.13

The ::

r

shall supply all

n

ecos ary s11fcty equipment inoluding npprov"d resp ra1ors

ntplo cc. plratorqnd/or fttc masks shnll

apitntors and/or flloe

nployt

/or¹foco rnMkal no CO$ to

stflrcd In convcnlcut

an

d

th

e

R

o

s

c

e

,

IIICJJn antl ,anllnr

'

Y

IOC!I i"on thjob sito. R

All

s

hift b1.1s p₁₁rn10rs shnll be dcsl£:t111tod

u

suo!t 11nd s 1all receive trai !n3and

0

instruution 111 su11h thinllS ns: safu vehicle opomt

dulivery

1

on, sahll)' rul

,

and ptck-up a.nd

p

rocudures

.

Onlytllose who tlave {lmplcted thltraining stmll be a.llow rd 10

drivo shift bu es,

Ill. RELEVANT MANAGEMENT POLICIES:

•

Teck Coal Limited Management Policy: No. 27 Alcohol Policy

Teck Coal Limited Management Policy No. 28 Illegal Drug Policy

Teck Coal Limited Management PolicyNo. 29 Medication Use Policy

These policies are attached at Appendix

C

IV.

FACTUAL BACKGROUND

CRO's Work Environment

[7] The Employe 24/7 open pit coal mining operation at CRO involves complex methods of

r's

excavation and processing often associated with a significant potential for hazards, described as an

environment with "no room for error". Ross Wilson, CRO's Mine Operations Superintendent, spoke

of the nature of the equipment in operation (haulers, dozers, loaders, backhoes, shovels, light

vehicles) in remote areas subject to changing env He spoke of the

ironmental and site condit

i

ons

.

12-hour shifts worked by many employees alternating between days and nights, often while

,

working alone with little direct supervision and with communications largely restricted to radio

contact. He spoke of the dangers of blasting and drilling activity; the dangers related to the pre•

stripping of

a mining area, such as from falling trees, cutting logs and pushing topsoil. He spoke of

the repetitive nature of the work required of employees over long hours and the associated

concern with fatigue. He spoke of the need for measures designed to assist in minimizing or

eliminating risks in CRO's work environment.

[8]

Another component of the Employer's operations was identified as maintenance

troubleshooting, performed in the Maintenance Shop or in the processing plant under the direction

CRO's Maintenance Supervisor, Glen Ross. The varied environmental conditions under which

8

maintenance work must be performed requires alertness and vigilance. Typical tasks required of

maintenance employees involve hoisting, rigging, ladders, slings, scaffolding, hydraulic jacks,

welding machines and cranes; many of which require the use of electricity which itself can

constitute a hazard. Employees who are assigned to work in the Maintenance Shop or at Cheviot

work either twelve hour day shifts or on alternating twelve hour day/night shift on four days

on/four days off work schedule rotation.

[9]

There is no dispute that CRO's bargaining unit employees occupy safety sensitive positions

within a safety sensitive work environment.

[10]

The Employer's historical approach to its operations was described as one which focused on

production, costs and processes, along with primarily reactive interventions in response to actual

injuries.

[11]

Commencing in the mid-1990's, the corporate focus underwent a gradual but discernible

shift toward preventative measures in response to a broad range of identified risk factors in the

conduct of the day-to-day business of its open pit mining operations.

[12]

Robin Sheremeta, Vice-President of Teck Coal ltd., utilizing a risk management approach to

universal

the enhancement of safety in the workplace, was tasked to develop, lead and achieve

a

"culture of safety" within the Employer. In doing so, efforts, programs and protocols focused on

identifying, assessing and mitigating risks to safety in the workplace.

[13]

This risk identification approach focused on the nature of hazard rather than its frequency;

which, in turn, determined the corporate response to the risk within a global environment which

had recorded 44 fatalities over the course of the last 25 years.

[14]

Mr. Barrie, CRO's Human Resources Superintendent, provided an overview of CRO's safety

statistics compiled by its Safety Supervisor for the period 1993-2013, detailed in Exhibit 43. In doing

so, he explained the various categories for which statistics were recorded, utilized to measure

frequency and severity of workplace incidents based upon two hundred thousand man hours

worked, as follows:

•

LTI: Lost Time Incident: employee unable to return-to-work following injury

in the incident;

MA: Medical Aid: employee requiring medical aid (often from a physician)

following a workplace incident;

•

FA: First Aid: employee requiring minor aid following a workplace incident;

Dl: Disabling Injury (adopted in 2013): workplace incident requiring the

assignment of modified or alternate duties.

[15]

As of the date of Mr. Barrie's appearance at the hearing (April 22nd, 2014), he stated that

CRO had not experienced a single Lost Time Incident since October 2012; a result which he

associated with CRO's May 2012 introduction of its random testing program. It was, however,

determined during cross-examination that there had been a Lost Time Incident after May 2012 and

9

further, Mr. Barrie testified that there was no evidence linking a Lost Time Incident with either drug

or alcohol impairment since the Employer had taken over operation of CRO in 2006.

[16]

He confirmed that the record illustrated by CRO's safety statistics demonstrated an overall

improvement in mine safety over the last 21 years, which he attributed to a variety of reasons,

including such things as increased training, the Courageous Leadership Program and

improved/increased infrastructure and technology.

[17]

The Employer's safety performance moved from tracking actual injuries [Lost Time Injuries

("LTI")] to tracking the risk of injuries through investigations of High Potential Incidents ("HPI").

[18]

Mr. Sheremeta defined an HPI as "an incident that occurs that has the potential to result in

a serious injury or fatality" and explained that the Employer tracked three categories of incidents of

increasing severity requiring progressively more significant responses.

[19]

HPis are ranked according to the level of seriousness of the incident: the less serious as

category 3, Serious Potential Incidents as category 4, and the most serious, Potentially Fatal

Occurrences, as category 5. All mine site incidents are recorded and shared throughout its various

operations to be reviewed against existing protocols as an additional means of identifying and

measuring workplace risk.

[20]

majority of documented incidents were ranked category 3 incidents, many reflecting environmental

and hazard conditions as well as a variety of human factors. Such incidents included a report of

CRO's HPI record [January 2011 - February 2014] was entered as Exhibit 27. The great

a

"snow avalanche" reported to be covering part of the road near the main gate [1/25/11]; a crew

bus carrying two people rolling onto its side after striking a bridge [2/23/11]; an excavator exposing

an undetonated booster in face [4/29/11]; a piece of steel plate falling four feet striking an

employee's hard hat [12/1/12]; and the operator of a haul truck falling asleep at the wheel with the

truck coming to rest on the dumped material at the road edge [2/14/14].

[21]

The breakdown of the categories of the HPI incidents recorded in Exhibit 27 over the

reporting period is set out below:

Category

12

3

Category 4

Category 5

2

2011:

2012:

2013:

2014:

1

3

7

2

1

0

[22]

With respect to HPis specifically, Mr. Sheremeta explained that such incidents are

investigated to establish not just how an event occurred, but to identify all of its contributing

factors. He reported that these investigations have established that in the majority of HPis some

element of human judgment was involved in the outcome; whether because

a

mistake was made,

10

an act of risky behaviour was undertaken, or because an individual engaged in reckless behaviour

by consciously disregarding a significant safety rule.

[23]

Robyn West, CRO's former Human Resources ("HR") Superintendent {2008-2013),

confirmed that should drugs or alcohol have been considered a factor in an HPI event, a post•

incident test would have been ordered and if positive, would have resulted in the offender's

termination of employment.

[24]

In addition to changes in how incidents and risks were recorded in the workplace, the

Employer's response to risk transitioned from reactive to preventive measures, resulting in the

adoption of a progression of preventative safety measures, educational programs and training

initiatives. Such multi-faceted measures include specifically mandated steps, such as

a requirement

to hold regular safety meetings, having employees complete field level risk assessments before

undertaking assigned tasks,and requiring the reporting, investigation and recording of HPis.

[25]

policies, Standard Practices & Procedures ("SP&P") and the use of Computer Based Training

modules ("CBT"). The Employer also introduced variety of educational initiatives by way of

Other risk-responsive measures incorporated periodic reviews of applicable corporate

a

presentations and through the distribution of written materials, covering such topics as mental

illness, fatigue management, jet lag for shift workers and the use and abuse of alcohol, illegal drugs

and medications. In addition, new technologies were acquired; such as those which permit vehicle

monitoring, effect collision avoidance, permit slope monitoring and the identification of fatigue

events.

[26]

Mr. Sheremeta reported that actual injuries (LTis) in coal operations have decreased over

with 2013 being the third safest year on record.

the last ten years

,

[27]

The collective purpose behind all of these workplace measures was described by several

Employer witnesses as: "Everyone going home safe and healthy every day".

[28]

Each member of the bargaining unit who testified at the hearing individually affirmed a

commitment to safety while performing work at CRO; whether in the Shop, the Plant or at the Pit.

[29]

Union witnesses included a Control Room Operator, a Pit Utility Worker, a Shovel Operator,

a

Machinist and a Crane Operator/Heavy Duty Mechanic. Each recognized the importance of safety

in their work environment. In the words of BUE#1, a sixty-three year old machinist who began work

at CRO in 1982: "Safety is very important. Nobody comes down to get hurt. You do what you can

to make it as safe as you can".

[30]

occupied this position since 2007. He has been employed at CRO since 1979, having started as

truck driver in the Pit, and later worked as a heavy duty mechanic, maintenance worker and crane

Brent Bish is the President of the United Mine Workers of America, Local 1656, and has

a

operator before undertaking a series of union roles. He has been actively involved in seven

collective bargaining negotiations at the CRO.

11

[31]

Safety at the mine was described as the Union's top priority, reflected in the motto: "No job

will be done if it can't be done safely". Mr. Bish spoke of the efforts made to instill in union

members the right to refuse to perform any unsafe or unhealthy work.

[32]

matter of course; many of which were often identified initially through discussions with union

members during safety meetings. Such concerns have included the absence of a spring brake on

Over the years the Union has identified and raised safety concerns with the Employer as a

a

fuel truck and appropriate training for new hires in the use of service brakes on haul trucks. The

Employer has been responsive to safety issues raised by the Union and has taken steps to address

Union concerns.

[33]

The Union has also undertaken a more formal safety role through the development of the

Safety, Health and Environment Committee which later transformed into the Occupational Health

and Safety Committee ("OH&S Committee"); composed of three Union appointed members and

three Employer appointed members. The OH&S Committee undertakes safety initiatives to

promote workplace safety. Bargaining unit members are eligible to (and do) participate as

members of CRO's Mine Rescue Team.

[34]

In addition to work on safety committees, safety issues have been raised and successfully

negotiated during the collective bargaining process as set out in Article 14 of the Collective

Agreement. For example, workers may no longer be subject to disciplinary action for refusing to do

unsafe work [Article 14.08(c)]. That said, Mr. Bish testified that the bulk of the safety language

contained in the Collective Agreement has been in place since 1981and changes in the language

thereafter were generally described ashousekeeping issues.

[35]

Without doubt, based upon views expressed by all CRO personnel, whether testifying on

behalf of the Employer or the Union, it is evident that safety is a shared value at CRO. Both

Employer and Union witnesses attested to the priority placed upon safety, described by some as a

fundamental "core value". The collective commitment to safety is and has been expressed in the

support and sponsorship of a variety of initiatives to enhance safe working conditions.

The Evolution of CRO Drug and Alcohol Policies

[36]

It is within the context of this safety sensitive work environment that drug and alcohol

workplace rules were introduced at CRO.

[37]

Following a fatality at the mine in 1999, the Employer and the Union collaborated in the

introduction of drug and alcohol testing at CRO in 2000. This joint initiative was prepared in large

measure by CRO's general manager and Brent Bish, then in the capacity as Vice-President of Local

1656.

[38]

Mr. Bish described the resulting drug and alcohol policy as a "Joint Memo" which essentially

provided that the presence or use of alcohol and illegal drugs on the mine site would not be

tolerated. In it, both the Employer and the Union acknowledged that people impaired by drugs or

alcohol in the workplace created a safety risk. Prohibitions against the use of drugs or alcohol at

work or showing up for work under the influence of drugs or alcohol were adopted. [Exhibit 35]

12

[39]

In 2005, a significant methamphetamine problem at CRO and in the local community was

identified by both the Employer and the Union; evidenced at CRO, in part, through incidents of

absenteeism and disciplinary action. In response, the Joint Memo was updated, resulting in the

introduction of the 2005 drug and alcohol policy (the "D&A Policy").

[40]

The D&A Policy prohibited the use,possession, cultivation, manufacture, sale or distribution

...in circumstances such

o

f

an illegal drug while on duty and the use of an illegal drug while off duty "

that the employee's work performance may be adversely affected....[including] carry-over or

hangover effects of an Illegal Drug which may affect work performance." It prohibited the use of

alcohol while on duty and required responsible consumption of alcohol during the 24-hours

preceding a work shift. Possession or use of a medication without a legally obtained prescription

was also prohibited. [Exhibit 10,Section 3.0]

[41] The D&A Policy incorporated reasonable cause and post-incident drug and alcohol testing

although it did not identify specific cut-off limits designating a positive test result. The Employer

also conducted pre-employment drug and alcohol screens. The D&A Policy, updated in 2009,

remained in effect at CRO until May 2012.

[42]

Employees found in violation of the D&A Policy were subject to disciplinary action and those

who tested positive could face termination of employment at the Employer's discretion. In the

event employment was continued, the Employer could impose "whatever steps are necessary or

appropriate to avoid the risk of workplace impairment in the future". Such steps could include

return-to-work periodic and/or random testing. [Exhibit 10, 6.0 (b)

]

[43] In her capacity as CRO's HR Superintendent, Robyn West supervised CRO's Drug and Alcohol

Testing Program under the Employer's Health and Safety Department and oversaw the introduction

of the mandatory random testing program in May 2012.

[44]

Ms. West testified about a number of specific incidents during her tenure which resulted in

either reasonable cause or post-incident testing; episodes which she said contributed to the

Employer's later adoption of the random testing program. These incidents included an employee

whose employment was terminated upon testing positive under a post-incident test and another

whose employment was terminated upon the discovery of the use of an adulterant in a urine test.

[45]

She described additional incidents which impacted upon the evolution of CRO's drug and

alcohol testing regime. In 2010, a Plant employee who tested positive for methamphetamines,

underwent an assessment and was determined to have an addiction. The employee completed a

prescribed treatment program as well as

a 24-month return-to-work monitoring program. Ms.

West reported that the employee expressed gratitude for the support received from the Employer.

[46]

Ms. West recalled another employee who was chronically late or absent from work and who

had declined assistance under the Employer's Employee Family Assistance Program ["EFAP"] a

number of times, leading to termination of his employment (date not stated). Although she initially

testified that she believed that this employee was an alcoholic, she admitted that she could not

recall whether that belief was factually accurate or not.

13

[47]

Another incident concerned the discovery of a baggie of methamphetamine on the meeting

room floor at Cheviot Dry. Ownership of the baggie was suspected but never determined. In March

2011, the Employer responded with a workplace presentation on Crystal Meth delivered to all

employees by area superintendents. On the basis of an anonymous call,

was interviewed and asked to undergo a drug test. The employee tested positive for

methamphetamine. A subsequent assessment confirmed this employee suffered from an

addiction. Following treatment, the employee declined the opportunity to return-to-work on the

conditions set out in Monitoring Agreement. According to Ms. West, this incident was "big one"

in CRO's decision to volunteer as the first Teck Coal site to adopt random testing.

a CRO employee BUE #13

a

[48]

Ms. West also identified reports generated by the police, hospital and news agencies which

noted a prevalence of drugs and/or alcohol use in the local community as a factor in the Employer's

eventual decision to adopt random testing as a deterrence measure.

[49]

Other CRO managers testified about their knowledge and experience with drug and/or

alcohol use or suspicion of use at CRO and at other mine sites prior to the Employer's introduction

of its random testing program, some of which include the following:

•

location/Date not provided: An employee reported finding a Ziploc bag of

several "% inch long blue pills" on a dash, which Ross Wilson understood to

be "diet pills". Mr. Wilson was unable to say by whom or what process was

used to determine that the pills found were indeed diet pills. Nonetheless

finding these pills was a concern because it suggested that someone was

improperly using diet pills to stay awake. This incident caused the Employer

to focus on the impact of fatigue upon workers resulting in the introduction

of strategies to combat fatigue in the workplace.

•

October 2ih, 1999: During the final hour of a night shift, a collision occurred

during which one haul truck rear-ended another, resulting in a fatality; an

accident which Glen Ross described as "chilling" and "sobering"; representing

what he described as one of the saddest days of his life.

Toxicology

investigations following the accident identified ...very recent substance use

"

by the deceased, effects of which cannot be quantified by the investigator".

[Exhibit 34, p. 05/12]. As a result of this incident, the Union and the

Employer jointly created a formal Alcohol and Drug Policy in October 2000

[Exhibit 35].

•

2003 or 2004: A plant production foreman found what he believed to be

marijuana in a desk drawer in the dryer panel control room. Ownership of

the item was never established.

August 2004: an employee reported the smell of marijuana in a haul truck

under repair, perhaps out of a concern that the maintenance worker would

himself be accused of using marijuana at the mine site.

investigated but noted no unusual smell in the truck. Still, the incident raised

concern that perhaps there was drug use at the site. A day or two later,

Glen Ross

a

member of a maintenance crew told Mr. Ross he saw someone "toking up"

outside of the warehouse but refused to identify the person out of fear of

14

repercussions. Mr. Ross responded by making

a presentation to members of

the Maintenance Crew about reports of drug and alcohol use and workplace

expectations. During the presentation, Mr. Ross said he made comments

that he hoped would deter drug/alcohol use [Exhibit 33].

•

May 2008: a wash-bay attendant fell off of a ladder during a night shift. The

subsequent investigation concluded that human error factored into the

incident and the employee was required to undergo

a post-incident test,

which was positive for an illegal drug although Mr. Ross could not recall what

drug was identified. Mr. Ross believed the employee resigned thereafter.

September 2009:

a wash-bay attendant drove through a red light and was

involved in a near-miss incident on his way to the Cheviot Pit. It was

determined that human error factored into the incident and the employee

was asked to undergo

employee was suspended pending further investigation.

a

post-incident test; which was positive for THC. The

The employee

ultimately remained off work on a WCB claim; whether or not there was any

causal connection to the incident was not identified at the hearing.

•

Date not provided: a captain of the Mine Rescue Team had a negative

drug/alcohol test but disclosed to Glen Ross that he used marijuana for back

pain. For that reason, Mr. Ross could not allow him to return-to-work.

Human Resources sent him for an assessment. This employee signed

a

Return-to-Work Agreement but subsequently resigned. Mr. Ross stated that

given his important role .on the Mine Rescue team, he expected this

employee would be a safe worker.

[50]

In 2011 a review of the effectiveness of Teck Coal Ltd.'s existing D&A Policy throughout its

11

Canadian operations was undertaken by members of its SeniorManagement Team

{

SMT"). At that

time, the D&A Policy limited testing to reasonable cause, post-incident and pre-employment

situations. According to Glenn Campbell, Teck Coal Ltd.'s Director of Human Resources and a

member of the SMT,the review established:

•

D&A test results in the previous five-year period identified fifty employees

involved in incidents at the various mines had tested positive for drugs.

Drug paraphernalia and empty liquor bottles had been found on mine sites.

A number of employees had voluntarily disclosed drug and/or alcohol

problems and sought assistance.

•

A number of employees had been identified in newspaper publications

addressing drug/alcohol use in communities.

Members of the RCMP had advised the Employer of an ongoing drug/alcohol

problem both in Elk Valley and in Hinton.

Approximately 30-40 applicants for employment failed the drug/alcohol

screen each year.

[51]

Members of the SMT consulted with experts about drug and alcohol use and were informed

that performance deficits could be created by the use, "carry-over" effects and/or withdrawal from

drug and alcohol use.

15

CRO's Random Testing Program

[52]

The Employer accepted the recommendation of its consultants and, effective May 2012; it

unilaterally implemented its universal mandatory random testing program at CRO. It did so in an

effort to deter substance use, identify those who may have a dependency problem and in doing so,

reduce the risk of (and eventually eliminate) incidents, accidents and/or injuries in the workplace

attributed to drug and/or alcohol use.

[53]

The Union, employees and contractors were provided with twelve weeks' advance notice of

the implementation of random testing. Ms. West explained that this notice period was adopted to

provide an opportunity for recreational users to "stop" and those with a dependency problem to

seek assistance.

[54]

The random testing program was introduced to employees during 01/2012 by way of a

presentation entitled "Carry-Over and Long-Term Effects of Drugs" [Exhibit 30].

[55]

The Employer's Policy Objective in adopting random testing was announced via the

presentation materials as follows:

Employees to stop the harmful use of illegal drugs, alcohol and medications

before they have an incident.

Carry over effects of illegal drugs create an unacceptable safety risk.

We want a workplace free from these risks.

[56]

Mr. Campbell explained the random testing program's focus was on "helping" rather than

"disciplining" employees; noting that a positive test did not result in termination of employment,

but in referral to an addictions specialist for an assessment and support throughout any

recommended treatment process thereafter, at Employer expense.

a

[57]

The Employer adopted a 100% random testing rate: meaning that in a year, the number of

random tests scheduled should equal the number of employees at any given mine site.

Testing Protocols

[58]

In October 2011, Denise Thomson, a registered nurse, was hired as CRO's occupational

health nurse. Earlier in her career, she had obtained her certification in urine/breathalyzer drug

&

alcohol collection and screening procedures and gained experience in the legislatively authorized

random testing protocols in several Australian locations in which she had been employed. Upon

her return to Canada, Ms. Thomson duly registered in her nursing credentials and obtained

Canadian accreditations in drug testing and in alcohol testing through ECS Safety Services Ltd.

[59]

In her role at CRO, Ms. Thomson provided a variety of on-site nursing services and disability

management functions for workers. She was tasked with the coordinating the Employer's drug and

alcohol testing program in accordance with applicable Employer SP&Ps [Exhibit 7].

16

(60]

Ms. Thomson worked with the Employer's Health and Safety Manager in the development

of the random testing protocols and procedures, including the selection of the testing laboratory,

the adoption of the drug panel screening confirmation level cut-offs in use at CRO, set out in Exhibit

37, and the selection of the Medical Reviewing Officer (MRO). She explained that strict testing

protocols were adopted in order to maintain the integrity of the collection process and the chain of

custody of the testing samples.

(61]

Ms. Thomson provided the Board with a detailed description of CRO's testing process,

summarized as follows:

•

The selected individual is accompanied to the testing facility.

•

The testing protocol for both an alcohol and a drug screen is explained and a

consent form for both the breath test and urine screen is presented for

signature [Exhibit 9].

•

The chain of custody form for alcohol is completed by both the nurse and the

individual. The breath test is administered. If the test result is over .02, a

second (confirmation) test is required. A reading of .02 or more is

a positive

test result. The individual is asked to sign off on the test result. If the result

is disputed or if the employee refuses to sign, the refusal is recorded by the

collector (nurse or a designated Loss Prevention Officer ("LPO"). Copies of

the test result are provided to the Designated Employer Representative

(

"DER"),the HR Superintendent and to the employee.

•

The urine screen follows the breath test. The washroom facility is prepared

for the testing protocol. All materials are removed. A bluing agent is put into

the toilet bowl; the water taps are sealed or shut off (to prevent dilution of

the sample).

•

A consent form is presented for signature. If obtained, the drug test

proceeds.

Any visibly bulky or layered clothing must be removed and pockets emptied;

for reasons of both comfort and security, particularly to ensure that no

adulterant (synthetic or other real urine, powders or other paraphernalia) is

taken into the washroom to compromise the veracity of the test results. The

individual is asked to "pat" him/herself down and then directed to enter the

washroom to wash their hands to avoid adulterating the sample.

A "tox cup" is provided to collect the urine sample. The individual is directed

not to flush the toilet. The collector remains outside of the washroom but

does not observe the collection of the sample itself. The tox cup is returned

to the collector with the sample. A sample of 100 ml is required for the drug

screen.

•

If the sample is insufficient or if the individual is unable to provide a sample,

"shy bladder protocol" is instituted. The individual is provided with

a

specified amount of water and up to 3 hours to complete the drug test a

second time. If the second sample is insufficient, the result is relayed to the

DER, who assumes responsibility for further action.

17

•

If a sufficient sample within a normal temperature range is obtained, it is split

into testing cups {30 ml and 15 ml) with the remainder retained in the sample

cup.

•

A chain of custody form is completed. A preliminary screen is performed on

site. The results can either be negative or non-negative.

If non-negative for opiates, a Medication Protocol will be implemented. The

employee will be advised that a substance has been detected in his/her urine

and will be asked whether he/she is taking over-the-counter or prescription

medication. If yes, the employee is allowed to return-to-work pending lab

confirmation of the test result.

•

If the on-site test sample is non-negative for THC, the employee is informed

of the preliminary test result and the employee's supervisor and the DER are

contacted

.

Urine samples are sent by courier to the lab for confirmation testing and

review by the MRO. The donor's name is not disclosed on the sample. The

MRO interprets the results of the drug screen. The MRO will confirm

whether the test is positive or negative, but does not reveal the

concentration level of any substance identified in the sample in the event of

a

positive or a negative test result; only whether the sample was above or

below the "cut-off" established under the Employer's testing protocol.

Positive results are disclosed to the nurse or to the HR Superintendent for

further action.

•

The collector's role in the testing protocol is concluded.

[62]

Ms. Thomson explained that the nurse's role may continue in the event of a positive test

result, which might include making arrangements for an assessment or for substance abuse

counselling, responding to employee questions or overseeing compliance with a Return-to-Work

Agreement ("Monitoring Agreement").

[63]

In overseeing a Monitoring Agreement (which expressly provides for unannounced testing),

Ms. Thomson would determine at her discretion when an employee would be required to undergo

"unannounced testing". In doing so, she was not required to consult with anyone in arranging for

an unannounced test nor were there any guidelines in place regarding the timing of unannounced

tests. Rather, Ms. Thomson testified that it was often a question of manpower; meaning her

availability to conduct the test.

[64]

[65]

Test results were compiled on a monthly basis and provided to the HR Superintendent.

Mike Barrie replaced Robyn West as CRO's HR Superintendent in October 2013. He testified

at length about his duties, responsibilities and experiences in connection with the implementation

and operation of the Employer's random testing policies and protocols, primarily while based at

CRO. Those duties involved administering the random testing program, identifying, assessing and

implementing approved corporate and site specific policies and protocols and related amendments;

and implementing approved drug and alcohol testing processes, follow up testing and monitoring

protocols and various training and communication initiatives.

18

[66]

Early in his new role, Mr. Barrie oversaw a number of changes to established random testing

protocols which, he explained, were necessary to improve confidentiality and strengthen the

application of deterrence measures within the alcohol and drug testing process.

[67]

To assuage any concerns about possible "targeted" testing (whether by name or by date),

CRO outsourced the scheduling of random tests, thereby reducing the number of Employer

personnel with knowledge of who and when individuals had been selected for testing. Randomly

generated names and dates for testing of selected CRO personnel were forwarded to Mr. Barrie and

to the HR Advisor on

a weekly basis, placed in sealed envelopes identified only by testing date and

stored in locked box in the Safety Department. Thereafter, the secured envelopes were accessed

a

only by the Loss Prevention Officer ("LPO") assigned to conduct the testing on the scheduled date.

Supervisors were contacted by the LPO and asked to accompany identified personnel for alcohol

and drug testing to the testing facility.

[68]

the start of a shift) in favour of testing at any time during

intended to function both as deterrence measure, generated by the uncertainty of when a

random test might be scheduled (date and time), and as mechanism to enhance the privacy of

Another procedural change resulted in the elimination of established fixed time testing {at

a

scheduled work shift. This step was

a

those selected for testing by eliminating the noticeable "hold back" of all those scheduled for

testing at the start of a shift. He conceded that although the new procedure was less visible and

less obvious, whenever removing an employee for testing during

anonymity from other members of the crew.

a shift did not guarantee

[69]

A number of corporate level changes to drug and alcohol protocols applicable throughout

Teck Coal sites were also implemented, the most significant of which was the Employer's response

to a non-negative test result for opiates.

[70]

The Employer's initial response to a non-negative site result, regardless of the category of

drug tested (cocaine, THC, amphetamines, methamphetamines and opiates), was to send the

employee home, with pay, pending the outcome of the lab confirmation test. However, over time it

became evident that a significant number of lab confirmation tests for opiates identified

prescription or over-the-counter medications. After consulting with medical advisors, the Employer

revised its approach to opiates some 15-18 months prior to the hearing. Thereafter, employees

with a non-negative test result for opiates were asked whether they were taking any medication

and if so, whether they were taking the medication as prescribed. If an employee responded

affirmatively to both questions, the employee was no longer sent home but was instead permitted

to return-to-work pending the outcome of lab testing. This change in protocol was intended, in

part, to balance the privacy/confidentiality issues associated with employee disclosures regarding

medication use arising from a non-negative test result.

[71]

In the event that a lab confirmation test contradicted the employee's explanation

(identifying a mis-use of prescribed or over-the-counter medication or by the use of an opiate other

than a medication), the positive test protocols set out in the random testing policies would then be

initiated.

19

[72]

amphetamines once a preliminary lab confirmation test was positive for medication. In the event of

a subsequent non-negative result for amphetamines where current use of the same medication

This revised non-negative opiate protocol was subsequently adapted for use with

a

was disclosed, the employee was permitted to return-to-work pending the lab confirmation result

which, in turn, would determine whether any additional steps were indicated.

[73]

CRO's testing protocol obliged the LPO to inform Mr. Barrie of a non-negative site test.

Once informed, Mr. Barrie would contact the employee to outline next steps, both in the lab

confirmation process and thereafter. In doing so,it was his practice to specifically address whether

the individual would be permitted to return-to-work, or not; referred for assessment, or not;

determine eligibility for paid leave or Short Term Disability ("STD") benefits, or not; and the

consequences of agreeing to participate in the random testing protocols, or not.

[74)

As described above, the revised protocol in the event of a non-negative test result for

opiates or amphetamines would, in some cases, permit an employee to return-to-work pending

receipt of the lab results. If the lab test confirmed appropriate medication use, the employee

simply continued working regular duties as scheduled and there ended the matter.

[75]

In all other cases, employees with a non-negative result would be escorted home and

placed on paid leave.

[76]

If the lab confirmation test was negative, an unconditional return-to-work was authorized.

However, if the confirmation test proved positive for non-permitted drug or medication use, the

employee would be referred for an addictions assessment. At that point, the employee was eligible

for STD benefits of $700.00/week while participating in the process.

[77]

To achieve reinstatement to usual job duties, the employee had to commit to following any

if any, and agree to

and all treatment recommendations identified during the assessment process

,

undergo unannounced testing for a minimum period of 24 months following the return-to-work.

The return-to-work conditions were incorporated into a Monitoring Agreement.

[78]

Employees who refused to submit a breath/urine sample were removed from the

workplace, placed on unpaid leave and referred for an assessment. A refusal to participate in an

assessment would result in termination of employment. As such, Mr. Barrie conceded that

notwithstanding the express policy provisions for Illegal Drug Use [Exhibit 5, page 2 of 7, clause 3],

those who refuse to take a drug test authorized by the policy are not treated as if under positive

test protocols but, rather, are subject to entirely different consequences.

[79]

Employees whose employment has been terminated as a result of failing a post-incident or

a demand test are, in theory, eligible for re-hire. However, Mr. Barrie was unable to recall anyone

outside of the grievance process whose subsequent application for re-employment had resulted in

a job offer.

20

Drug and Alcohol Testing Experiences at CRO

[80] A number of members of CRO's bargaining unit gave evidence at the hearing about their

experiences with CRO's random testing program. Given the privacy issues identified in this

grievance arising from the requirement that bargaining unit employees submit for random,

unannounced testing and provide breath and urine samples on demand, some of those experiences

are set out in some detail below.

[81]

BUE#lhas been employed by CRO since 1982. He was 63 years old when he testified at the

hearing. He works a twelve hour day shift alone in the Maintenance Shop. Coupled with personal

travel to the mine site, he estimated that his work day was usually 13-14 hours. After more than

three decades with CRO, his disciplinary record is exemplary. BUE#1said that he does not take

illegal drugs and has never been impaired by drugs or alcohol at work. Prior to the Employer's

introduction of random testing in May 2012, he had never been required to undergo either a

reasonable cause or post-incident drug or alcohol test. As of the date of his attendance at the

hearing,he had twice been required to submit to

a random test.

[82] BUE#1described his experience with the random testing process. He said he learned that

he had been selected for his first random test when his foreman patted his arm and said, "come

with me". The foreman accompanied BUE#1to the testing site (trailer). When he arrived at the

trailer, he recalled that a number of Loss Prevention Officers (LPOs) were present as well as some

other employees who were leaving the testing area. He was directed to a small office with a lady

(LPO) whom he did not know who conducted the alcohol and drug tests.

[83]

At the time, BUE#1was taking prescribed medication. The testing protocol was explained

to him. Because he had never before been subjected to testing, he estimated that he missed half of

the LPO's explanation. He was given some forms and felt that he had "no choice" but to sign the

papers because he thought that if he refused it would signify that he was "guilty", and that he

would be sent home and fired. He said that he felt essentially blackmailed into signing the forms.

[84]

drug test was conducted. Before the test he disclosed to the LPO that he was taking prescribed

medication [Tylenol 3 for recurring work-related injury], and announced that he felt that he would

An alcohol test was conducted (breathalyzer). BUE#1blew and his result was "ok". Next the

a

fail the test. The LPO explained that if his use of medication was legitimate, all would be "ok". He

was required to empty his pockets and pat himself down. He said he felt like he was in jail. He was

required to select a beaker and go to the washroom. He found everything duct taped in the

washroom. He urinated and returned his sample to the LPO. As expected, he tested positive on the

site drug test, an outcome reported to Ms. West.

[85]

While at home, he was contacted by the MRO who asked him to provide proof that his medication

was prescribed. He did so. About week later, BUE#1 was authorized to return-to-work. No

assessment was conducted upon his return; he went straight back to work in the machine shop.

BUE#1was sent home with pay. He remained away from work for three weeks thereafter.

a

[86]

BUE#1explained that he felt "somewhat ticked off" after the first random test, which he

described as an invasive procedure. He said the person who conducted the test was the age of one

of his grand-daughters. He felt that the process was not dignified.

21

[87]

In BUE#l's view, having to undergo a random test at the age of sixty-three, after more than

30 years of service to the Employer, caused him to wonder why, never having used drugs in his life,

the Employer now needed "some proof".

[88]

In October 2013, BUE#lwas selected for a second random test. At that time, he said that

there were rumours on the floor about testing although he did not disclose the nature of those

rumours. On this second test he described himself as more agitated and frustrated by his selection.

He again felt blackmailed into signing the papers or be "gone". He completed the alcohol test. He

was sent to the washroom for a urine sample and was told to wash his hands. He felt insulted at

being asked to wash his hands. He did the test. He was told to wash his hands again. In BUE#l's

words: "My mother learned me not to pee on my hands." He explained that he was more upset

than anything else. He felt like

a criminal.

[89]

BUE#dl escribed his feelings about being selected for random testing:

When they come to take you, it spreads like wildfire -we are like an "old ladies

club"

complaining about it. I was more agitated after the second test. Again, I felt

insulted I had taken the earlier test and "showed you that I'm not a drug

- everyone knows you went for testing, they're talking about it,

-

addict". Now they ask him again.

[90]

BUE#2 was 59 years old and had 38 years of mining experience, both at the Employer and

elsewhere, at the time of the hearing. He had been employed at CRO for the past nine years as

a

shovel operator. As with many others, he started in mining as a truck driver, both at the Pit and at

the Plant, hauling coal and waste rock. As a shovel operator tasked with loading the trucks, he

worked twelve hours

a day, rotating day and night shifts on a four days on/four days off schedule.

He estimated that 30-35 people worked on his shift.

[91]

Although he had not been disciplined for safety violations at CRO, he testified that he had

twice been asked to submit to a post-incident drug and alcohol test (2006, 2010); both of which

were negative.

5

[92]

On November 21

2013, BUE#2 was selected for a random test following the monthly

...it' your turn". BUE#2 refused to undergo the

refusal to test would require that he undergo an assessment

safety meeting. His foreman informed him,

random test. He was advised that

"

s

a

and once deemed fit to return-to-work, he would be subject to additional drug and alcohol testing

"whenever"; something he felt was equivalent to having "no rights" whatsoever. He was driven

home by Human Resources personnel. He was not told to return-to-work. His employment was

terminated by letter dated December gth, 2013 [Exhibit 11].

[93]

BUE#2 explained that he would not have gone for an assessment. He refused because he

felt the test was "stupid, degrading and not right" for someone who does not do drugs or alcohol at

the worksite. He was not concerned that he would have tested positive.

[94]

BUE#3 was 53 years old and had been employed at CRO for 25 years as a crane operator

and as a heavy duty mechanic when he testified at the hearing. His duties fluctuated between

22

these roles as circumstances dictated. As a crane operator he worked at the Cheviot mine site,

referred to as the Pit, where coal is extracted. His duties .as a heavy duty mechanic were also

largely performed in the field. He worked twelve hour days, on four days on/four days off schedule.

[95]

member of the Mine Rescue Team for fifteen years. Upon joining the team he participated in

mine rescue course and undertook recertification testing every couple of years. The team practiced

once a month to better respond to incidents on site. BUE#3 was also designated representative

During his career at CRO, BUE#3 had never been disciplined for misconduct. He has been a

a

under the Employer's Employee Family Assistance Program ("EFAP") and assisted employees in

accessing resources available through the program.

[96]

In September 2013, BUE#3 was involved in an incident while operating a crane. While

mound of dirt and

backing up he unknowingly drove over an 8 x 8 block of wood which was within

a

snow, causing damage to the crane. He said he should have first confirmed that the proposed path

of travel was clear. He reported the incident to the shop foreman. It was determined that the

incident warranted a post-incident test, which was negative. He resumed his duties immediately

thereafter.

[97]

As of March sth, 2014, BUE#3 had been selected for random testing on four occasions since

its introduction at CRO in May 2012.

[98]

On the first occasion, he recalled that he was in the lunch room when informed that he had

been selected for a random test and was escorted to the nurse's station. Present at the test was an

LPO and another female whom he could not identify. He went through the testing procedure. He

recalled signing a paper, verifying that the information was correct. He patted himself down. He

provided a breath sample and then a urine sample, each of which was negative. He returned to

work.

[99]

BUE#3 said his other three random tests followed essentially the same protocol but with

different people present on each occasion. When undergoing random testing he occasionally ran

into other employees who were waiting outside of the nurse's station. Taking the random tests

made him feel as though "they don't trust you". He explained that he likes doing his job. Being

required to take the random rests was also an inconvenience as it interrupted and interfered with

the performance of his duties. He testified he does not take illegal drugs and has never been at

work while impaired by drugs or alcohol.

[100] On the day of his testimony, BUE#4 was 51years old and had been employed at CRO for

approximately 21 years in a variety of positions in the Shop, in the Plant and at the Pit. In his

current position as a control room operator in the Plant, he was charged with monitoring the coal

processing process from its arrival at the Plant through to its end product. As in the case of many

other CRO employees, BUE#4 worked a 4 days on/ 4 days off schedule, alternating between days

and nights on a twelve hour shift rotation. Although he worked alone in the Control Room

throughout his shift, he routinely communicated with others in the Plant via radio.

23

[101] BUE#4 has neither been disciplined for safety violations nor subjected to either a post•

incident or a reasonable cause drug or alcohol test during his years with the Employer. Since the

introduction of random testing, he has been tested on three occasions.

[102] On the first occasion, BE#4 recalled that the general foreman came into the Control Room

with

a

relief worker and discreetly asked him to accompany him "to check something". Once alone,

random test and was escorted to the nurse's area.

he was informed that he had been selected for

a

Upon arrival at the testing area a LPO, the nurse (Ms. Thompson) and the general foreman were

present.

[103] He said he felt "uneasy" about undergoing

a drug test at the time because he had been

prescribed medication and was concerned that he might test positive as a result. He was aware that

people who tested positive were sent home pending the outcome of the laboratory tests. He was

concerned how it would "look" once other employees became aware that he had been sent home

without knowing all the facts; particularly since a positive result in his case would not signify use of

illegal drugs. For these reasons, he concluded that it was better to refuse the random test and have

the matter sorted out later

.

[104] BUE#4 recalled there being some confusion as to next steps once he refused the test. He

said that everyone was "really good about it" when he explained his reason for refusing the test.

After discussions with Employer and with Union personnel, he decided to take the test and

returned to the nurse's station with the LPO. The test results were negative. He returned to his

usual duties.

[lOS] A similar format was followed for his other two random tests. On September 25th, 2013 he

complied with the request to test but felt he was likely to fail the drug test because he had taken

prescription drugs (with codeine) for back pain the night before. As anticipated, he tested positive

for opiates. He completed a form disclosing the nature of his prescribed medication which he was

told would be sent to the laboratory with his sample. He was informed that he may be contacted

by the laboratory for additional information. He was then permitted to return to his regular duties.

He was never contacted by the laboratory. On January 30th, 2014 he was selected for a third

random test. Although the notification was discreet, he was upset at having been selected so soon

after the second test. Nonetheless he took the test, which was negative.

[106] Being selected for random tests had caused BUE#4 to feel uneasy and "on the spot". When

first selected he accepted it as he understood that random testing was before the Courts. By the

third test, he described it as "almost harassment". BUE#4 neither smokes marijuana nor uses other

illegal drugs and testified that he has never been impaired at work by alcohol or drugs.

[107] BUE#Swas hired in March 2010, first as

a loader, then as an operator and, since August

2013, as a Pit utility worker. In that position she performs a variety of duties which include

delivering supplies and operating equipment as circumstances dictate. She summed up her role as

doing "....anything they need for their 4 days on". She works 12 hour shifts on 4 days on/4 days off

schedule, rotating between day and night shifts, and reports to the shift supervisor and to the

general foreman. She is also a member of the Mine Rescue Team.

24

[108] BUE#S had been disciplined for a safety infraction prior to the implementation of random

testing, for operating a water truck without releasing both safety brakes during a night shift. In

August 2012, she noticed a burning smell which she promptly reported to her dispatcher. An

investigation into the incident revealed that it was "operator error". As a result of this incident she

was required to take

a post-incident drug and alcohol test. She was accompanied to the First Aid

Room at the Main Shop by the shop steward and the general foreman. A male LPO conducted the

testing while the general foreman stayed in a waiting room. At the time of the test, BUE#S was in

the second day of her menstrual cycle. She was embarrassed at having to present her urine sample

because it contained discernible blood and blood clots. She was then informed that there was a

"temperature problem" with her urine sample and was asked to provide a further urine sample.

This second sample also proved to have a "temperature reading problem", causing her further

embarrassment. She said that the LPO was aware of her embarrassment and chose to keep her

second urine test. She was not asked to provide a further sample.

[109] For one who is not easily embarrassed, BUE#S found the experience degrading. She

recalled that both the shop steward and the general foreman were upset by her experience and

contacted Human Resources and the health nurse in the middle of the night, who in turned

contacted the Operations Superintendent. She was permitted to complete her shift on another

water truck without incident. Although informed that the brake issue on the water truck was her

error, she was not suspended as a result of the incident.

[110] BUE#S was required to take a further post-incident test when she made contact with a

shovel while operating a dozer truck on night shift. Again, it was BUE#S who reported the incident.

Once it was determined that the incident was caused by operator error, she was required to

undergo a post-incident test, which was negative. She was permitted to return-to-work thereafter.

[111] BUE#S did not like having to provide urine samples in these circumstances but accepted the

legitimacy of post-incident testing because she recognized that she was at fault for the incidents

.

[112] She was also selected for random testing. She recalled being informed at one of the crew's

morning meetings of the Employer's decision to implement random testing in May 2012. Since

then, she has been subject to random testing several times.

The testing protocol of each

"selection" was similar: following the morning meeting the foreman had requested that she "stay

back"; a term which she understood meant that she had been selected for random testing. She

usually waited in the meeting room along with the other employees (usually 3) who had also been

selected for random testing. They would proceed individually into the trailer outside the Dry where

they were met by the LPO. Each time BUE#S has been selected for random testing the test result

has been negative.

[113] BUE#S found the random testing experience a little degrading. She explained that she is

only trying to earn a living. She has not smoked marijuana since she commenced employment with

the Employer and has never been impaired by drugs or alcohol at work.

[114) The Union's President, Mr. Bish, identified a number of concerns with CRO's random testing

program, one of which involved a refusal to test.

25

[115] The Employer's protocol in the event of a refusal was to send the worker home pending the

outcome of an addictions assessment (the "Assessment" undertaken to determine whether or not

),

the worker had a substance abuse problem. The results of the Assessment are communicated to

the Employer and to the Union. As of the date of the hearing, no substance abuse or substance

dependence problems had been identified among workers who refused to undergo a random Test.

Rather, Mr. Bish was aware of Assessments which confirmed only that there was no indication of

a

substance dependence problem. Nonetheless, in order for workers who refused a random test to

return-to-work, they are now subject to "enhanced conditions of employment" for a two year

period. These additional conditions include a requirement that the worker be subject to "demand

testing" at the Employer's request (in addition to reasonable cause, post-incident and random

testing) for those assessed without a drug or alcohol dependency, and who are subject to

termination of employment in the event of

future, on conditions.

a further positive test. Re-employment is possible in the

[116] Mr. Bish also pointed out that Short Term Disability benefits ("STD") are payable under the

Employer's insurance plan only to those workers who are disabled. Paid medical leave is measure

a

fully funded by the Employer which provides affected workers with financial relief while off work in

the absence of a disability; such as while undergoing an Assessment. Mr. Bish said that he was

aware that there had been positive drug test results since random testing was imposed in May

2012. Individuals who tested positive on a random drug test were placed on paid medical leave,

sent for an Assessment and returned to work when authorized to do so under conditions identified

by the addictions specialist. Such return-to-work conditions might include attending Alcoholics

Anonymous or Narcotics Anonymous meetings.

[117] Although Mr. Bish conceded that there are a variety of steps that could be taken to enhance

safety in any given situation, he cautioned that any assessment of the reasonableness of any

specific measure must properly consider all,and not just some,relevant factors. In his view, privacy

concerns represent one such relevant consideration. He said that the intrusiveness of random

testing must be weighed against safety interests. He described the feelings generated amongst

bargaining unit members by the Employer's adoption of random testing when, in their view, it had

no reason to mistrust them.

[118] Mr. Bish agreed with a number of theoretical situations put to him: smoking marijuana

immediately before coming to work would be

level over .04 would be a concern; finding drug and alcohol paraphernalia on Employer premises

would be a concern; and that a positive post-incident test would be concern. However, in Mr.

a concern; showing up for work with a blood alcohol

a

Bish's view, before resorting to random testing, it must first be established that there is a sufficient

problem to warrant the adoption of such an intrusive policy in the first place and the evidence of

the "problem" at CRO, in his view, is lacking.

Random Testing Results

[119] In 2013,CRO had three hundred and forty hourly employees and 100 staff.

[120] Drug and alcohol test results are compiled at each mine site, forwarded to Mr. Campbell's

office and synthesized into charts which set out site-specific test results; coded blue for employees,

26

green for contractors and visitors, and orange for aggregate test results. Random testing at other

5

1

2013. With respect to drug test results,

mine sites other than CRO was implemented on January

although the total number of site non-negative tests should equal the number of lab confirmed

positive and lab/MRO confirmed negatives; the charts do not always demonstrate this result. Mr.

Campbell was unable to explain identified discrepancies. While the differentials do not appear to

be significant, they were not explained. Copies of the charts generated for 2012 and 2013 were

provided to the Board. [Exhibit 45{a) and (b)]

[121] In summary, of the four, 236 random tests scheduled at all sites in 2013, there were 21

refusals, 184 non-negative results at site and sent to the laboratory for confirmation testing; 71 of

which were positive and 108 were negative (inclusive of non-negative results determined to be

medications). In theory, the site non-negatives should equal the lab positives and negatives. In this

case,they do not; the differential is 5 {1841ess 179).

[122] 2013 CRO employee drug and alcohol testing results are set out in Exhibit 45{b). Of the 320

random tests scheduled, 35 were site non-negative (including 3 refusals) and sent for lab testing.

The lab/MRO identified 12 positive and 20 negative test results. Of the 24 post-incident tests

conducted in 2013, none were positive for drugs or alcohol. No reasonable cause tests were

conducted at CRO in 2013. In total, 12 of the 344 drug and alcohol tests conducted at CRO in 2013

were confirmed positive and there were 3 refusals.

[123] The Employer also produced random testing data related to CRO in Exhibit 29. At page 2

are the aggregate results of the 374 random alcohol and drug tests conducted on "employees and

contractors, visitors" at CRO in 2013. Of those random tests, the chart indicates there were 14 lab

confirmed positive drug tests, 2 site alcohol positive tests and 3 refusals. Extrapolating from those

named in the chart [names intentionally redacted}, excluding the names of contractors and

members of management who tested positive, it appears that 8 members of the bargaining unit

had positive random tests in 2013; one of whom had 2 positive tests.

[124) For 2014, page 2 of Exhibit 29 sets out CRO's aggregate random testing results to March

2014. Of the 104 random tests conducted, there were 5 lab confirmed positive drug tests,

1site

alcohol positive and refusal. Again, extrapolating names disclosed on the chart it appears that

1

member of the bargaining unit tested positive for alcohol and 2 tested positive for drugs. One test

rest was described on the chart as "not sent". Thus it would appear that 3 of the 104 positive

random tests are those of members of CRO's bargaining unit.

[125} While the chart results set out in Exhibits 29 and 45 are not identical, for the purpose of

assessing the existence and/or nature of a drug or alcohol problem at CRO, in my view the

differential is not of any particular significance.

[126) Mr. Campbell believes that the Employer's adoption of random testing has directly resulted

in a safer workplace; a sentiment echoed by other Employer witnesses. In his words:

If there were only

in manner adversely affecting them in the workplace, [random testing] is still

worth it...given the safety-sensitive nature of our workplace.

a very, very small percentage of people using drugs or alcohol

a

27

V.

EXPERT WITNESSES

[127] One expert gave evidence on behalf of the Union, Dr. Scott Macdonald. Four experts

testified on behalf of the Employer,Drs. Francescutti,Kadehjian,Beckson and Li.

[128] The dispute amongst the experts is not about the safety risks associated with impairment in

the workplace. All agree that being "under the influence" of drugs or alcohol in the workplace is

properly prohibited. Rather, the dispute focuses on the justification, or lack thereof, for the

imposition of "no cause" random testing as a component of a multi-faceted safety program

designed to manage, reduce or eliminate workplace risk at CRO.

[129] A great number of days were dedicated to the evidence of these experts, the "summary" of

which necessarilyexplores the foundation upon which the various opinions rest, as detailed below.

[130] While the evidence of all of the experts was helpful and informative, for the sake of

organizational expediency, I have combined the evidence of two of the Employer's experts to avoid

undue replication, those of Drs. Kadehjian and Beckson. The evidence of the two epidemiologists

who participated in the hearing, Drs. Macdonald and Li, is set out consecutively for ease of contrast

and assessment.

Dr. Scott Arthur Macdonald

[131] Dr. Macdonald is an epidemiologist who has been employed at the University of Victoria as

Assistant Director, Centre for Addictions Research since 2005 and as an assistant professor at the

School of Health Information Science (2005-2008}, and as a full professor thereafter. After

a robust

examination of his credentials, he was qualified by the Board to give expert evidence on the role of

substance use in injuries, drug testing in the workplace and workplace health, harm reduction,

program evaluation and alcohol policy; each from an epidemiological perspective. His curriculum

5

vitae, report of February 21t, 2014 and reply report of March lOth, 2014 were entered as exhibits

46, 47 and 48 respectively. Dr. Macdonald's extensive reference materials are found at Exhibit 49,

Vols. 1& 2, [Tabs 1-91].

[132] As a social epidemiologist, Dr. Macdonald's practice areas have focused on the study of how

social conditions, such as drug and alcohol use, the influence diseases and injuries in society and,

more particularly, in the relationship between drug use and performance through the application of

both the descriptive and analytical branches of epidemiology; the former addressing rates and

proportions of diseases in a population, the latter examining risk factors which may be associated

with the disease under examination.

[133] The Board was informed (and accepts) that sound methodology in conducting research into

these issues and in interpreting acquired data is essential to the reliability of stated conclusions.

Thus an assessment of the methods applied in conducting research was characterized as an

essential element of Dr. Macdonald's research evaluations, as epidemiological design and data

collection flaws could bias reported results which, in turn, would necessarily impact upon the

integrity and validity of conclusions reached in varying degrees.

28

[134] Dr. Macdonald's opinions are based upon the preponderance of the evidence set out in

comprehensive literature reviews (including his own research studies) as set out in his report and

reply; opinions which were subject to a rigorous cross-examination over a 2 day period.

[135] Dr. Macdonald did not dispute that individuals under the acute effects of drugs or alcohol

[being "under the influence"] suffer performance deficits and represent an increased safety risk in

the workplace, and elsewhere. Accordingly, he agrees that "using" in the workplace represents an

increased risk of performance deficits and impairment in the workplace creates enhanced safety

risks. Dr. Macdonald also agreed that a dependency on drugs or alcohol is a problem and can affect

performance or influence injury risk, as can any withdrawal or hangover effects of heavy long-term

chronic cannabis or other drug or alcohol use. He acknowledged that many human factors can

create a risk of impairment in perception and response and agreed that managing the risk of

impairment in the workplace is "good management".

[136] In Dr. Macdonald's view, the real dispute relates to the risk of performance deficits

associated with a positive test result as opposed to establishing actual impairment in the workplace.

[137] He agreed that in managing risk, the reasonableness of workplace safety measures adopted

in response to identified safety risks must be assessed. In assessing the reasonableness of CRO's

drug testing program, he accepted that one must look at the risk of workplace injuries "from drugs"

as compared to those Employer measures adopted for other identified risk factors of similar or

equal risk: such as from fatigue, depression, nicotine withdrawal or risk-taking behaviours; each of

which might be related to an increased risk of accidents or injuries.

[138] Dr. Macdonald was of the opinion that the Employer has done a "pretty good job" of

establishing a safe work environment, reflected by its very low injury rate as compared to those of

many other sectors.

[139] Havingregard to these factors,Dr. Macdonald's evidence is summarized below.

Alcohol

[140] The Breathalyzer's accuracy in detecting concentration levels of alcohol is

a very good

measurement device for assessing impairment and associated safety risks as there is a strong dose•

response relationship between higher blood alcohol concentrations ("BAC") levels and

performance; the risk of being in a crash risesexponentially with a person's BAC level.

(141] From an epidemiological standpoint, an odds ratio of injury/accident between one and

three is considered a "weak effect". At BAC levels of .02 (Employer alcohol testing cut-off), the

adjusted relative risk estimates of

a crash is 1.03. In other words, it is Dr. Macdonald's opinion that

a

BAC of .02 is not meaningfully associated with an increased safety risk. At the same time, he

conceded that CRO's introduction of a .02 BAC level reduces the risk of impairment at work due to

alcohol, whether through deterrence, assistance or a combination thereof.

[142] Dr. Macdonald also pointed out that in the studies that looked at crash risk at different BAC

levels, a "dip" had been identified [apparent protective factor] at .02 [ Blomberg study and its

29

reference to the Borkenstein study [Exhibit 49,Vol.l,Tab 2] as well asin a number of experimental

studies]. He said that these studies did not find an impairment effect at BAC .02. Dr. Macdonald

explained that the relationship between BAC levels and impairment it is not simply a linear one but,

rather, an expediential or cubic relationship (very minimal effect at first which rises very rapidly

with greater alcohol consumption).

Illegal or Prescription Drugs

[143] In the Canadian workplace, urine is the most common fluid that is tested for drugs. Drug

testing is useful for detecting drug users. Neither form of urine testing (immunoassay (site) and gas

chromatography/GCMS (laboratory) identifies impairment; rather, only past use or exposure to a

drug.

[144] In Dr. Macdonald's opinion, urine testing is not a valid detector of performance deficits or a

valid indicator of safety risk. Having reviewed the literature, he found no studies which have

established a causal relationship between urine concentration levels and performance deficits; but

rather demonstrated the converse [Longo, Exhibit, 49, Vol.2, Tab 53; Movig, Exhibit 49, Vol.2,Tab

66; Li et a/, Exhibit 54, Tab 17]. For that reason, he opines that drug-recognition experts are

superior to urine drug test results in measuring impairment and performance deficits associated

with safety risks.

[145] It is the active ingredient of cannabis ("THC") and not its metabolized by-product ("TCH•

COOH") that affects performance. The presence of THC is detected in blood tests and not in urine

tests. The preponderance of epidemiological studies using blood tests have found that those

testing positive for THC are more likely to be in crashes; no such relationship has been identified

between urine testing and crash risk.

[146] Dr. Macdonald acknowledges that detection periods for different drugs vary, as do the

elimination periods of corresponding drug metabolites. However, in his view studies demonstrate

that detection periods in every instance greatly exceed the acute effects of the drugs. [Table 1,

Report,page 29]

[147] In his view, the preponderance of the evidence indicates that hangover effect for cannabis is

very slight or non-existent. Those studies which conclude otherwise suffer design flaws and noted

that often such results can be explained by other differences between cannabis users and members

of a control group.

[148] There is no evidence in the drug testing literature that random testing is better than post•

incident testing in creating a safer workplace.

[149] Dr. Macdonald conceded that principles of deterrence do apply to random drug and alcohol

testing; however, in his view that fact does not necessarilylead to a safer workplace. Worse yet, he

opined, a positive random urine test result "catches" individuals who represent no risk at all but

who are thereafter subjected to punitive mandatory interventions: mandatory assessment and

unannounced testing (in addition to random testing) even for those determined to be without

dependency (recreational users) for up to 24 months.

a

30

[150] From an epidemiological perspective,he stated that studies of raw data identifying reduced

numbers of positive drug tests over time suggest a deterrent effect in the use of drugs associated

with drug testing. For example, Quest data [Exhibit 49, Vol.2, Tab 71] reported a drop in positive

urine tests between 1988 and 2011 from a positivity rate of 13.6% to 3.5%, demonstrating

a

deterrence in drug use. However, Dr. Macdonald pointed out that a mere drop in the number of

positive urine test results in the absence of corresponding research demonstrating that a decline in

positivity rates signifies that fewer employees are impaired on the job or that workplaces in which

random testing has been introduced are thereby safer, undermines any conclusions drawn from the

"numbers". In his view, if drug use is a major cause of workplace accidents, one would expect that

the percentage of employees testing positive after accidents would be much higher than those from

random tests. The Quest random testing data 2009-2011 did not establish such a correlation.

Rather it demonstrated that 5.3% of the general US workforce tested positive post-accident while

random testing rates in those same periods were 5.4%, 5.3%and 5.2% respectively;indicating that

reductions in positivity rates have not translated into fewer job accidents.

[151] A comparison of Quest's random testing data for those in safety sensitive workplaces (1.5%)

versus those in the general workforce (5.3%) indicates that drug use itself amongst those in safety

sensitive workplaces/industries is significantly less than amongst the general workforce.

[152] Dr. Macdonald did identify a differential using Quest data to compare odds ratios of positive

post-accident and random tests of those in safety sensitive workplaces [1.53 and 1.73 respectively].

While acknowledging a higher percentage of positive random tests, Dr. Macdonald opined that it is

inappropriate to simply compare "crude odds ratios".

Minimally, from an epidemiological

standpoint, controls for such things as age, sex, occupation and risk-taking should be identified

before correlating the odds ratios between post-incident and random testing.

CRO Testing Results

[153] Dr. Macdonald then applied these principles and conclusions to the Employer's data of

CRO's random and post-incident testing results set out in Exhibit 29.

[154] Although Dr. Macdonald reiterated that comparing crude odds ratios is too simplistic (in this

case yielding an odds ratio of 1); he opined that if urine testing had validity in terms of detecting

performance deficits related to job incidents, one would expect a higher odds ratio. Instead, the

CRO testing results (random: 2.9 and post-incident: 2.3) is equivalent to an odds ratio of .79.

Restricting the analysis to the inception of random testing (May 2012), he pointed out that CRO had

no positive post-incident test results (as of the date of the hearing); indicating that not a single

incident at the workplace was related to

a positive drug or alcohol-related test.

[155] Based upon the epidemiological evidence available to date, Dr. Macdonald concluded that

there is no or insufficient evidence to establish that drugs are risk factor for accidents or incidents

a

in the CRO workplace or that drug testing is effective in identifying and in reducing such accidents

or incidents.

31

Epidemiological Study Design

[156] Dr. Macdonald cautioned against simply accepting conclusions set out in epidemiological

studies without first undertaking an assessment of the study design. The design flaws identified by

Dr. Macdonald are set out in his reports, the most significant of which include:

•

use of ecological/aggregate data: compares only crude odds ratios of groups

and not individual data and fails to account for confounding variables that

could better explain the results.

history of rival events: other workplace safety programs incorporated along

with the drug testing initiatives could explain/impact results. In the midst of

multi-faceted workplace safety initiatives, one cannot conclude that the

adoption of drug testing itself led to

a reduction in job accidents. For

example, the Taggert study [Exhibit 49, vol.2, Tab 80] identified an

approximate 50% decline in workplace accidents following the adoption of

drug testing, but without addressing confounding variables. Since the

random drug testing program established a positivity rate of only 2.3%, that

result did not correspond with the percentage decline reported by the author

and therefore the reported decline in workplace accident could not fairly or

reasonably be attributed to the adoption of a drug testing regime. Other

safety measures (such as educational, technological or training-related) must

have had some impact in the workplace accident rates.

•

regression towards the mean: smaller workplaces have higher variation in

yearly injury rates; when rates spike, safety programs such as drug testing

might be implemented.

When rates go down, the reduction is often

attributed to the new program. In the absence of statistical tests, the

reduction may be related to other factors.

measurement error: applying studies relating to a reduction of crash risk and

per se alcohol limits to the adoption of drug testing programs is faulty. None

of the studies reviewed by Dr. Macdonald looked at the critical measure of

drug and alcohol-related reductions after a program was implemented.

[157) Similarly, merely differentiating data into groups (pre-intervention, intervention and post•

intervention periods) without accounting for confounding variables is problematic, rendering

associated conclusions unreliable.

[158) As illustrative of design flaw, Dr. Macdonald identified the Wickizer study [Exhibit 49, Vol 2,

Tab 84]. This study evaluated the introduction of a 5 component drug testing program in

a mining

company in which injury rates were compared during three periods: pre-intervention, intervention

and post-intervention, on the basis of the application of a number of assumptions particularly

during the pre and post intervention periods. Although the study found a jump in injury rates

between the intervention period (20.41) and the post-intervention period {50.22), even the study's

authors acknowledged that without knowing whether the company maintained or discontinued

the drug testing program in the post-intervention period, it is unreasonable to attribute the post-

32

intervention increase in reported injury rates to

a discontinuance of the drug testing program; such

detail was lacking thus undermining the conclusions reached.

CRO's Injury Rate

[159] Dr. Macdonald reviewed data compiled and summarized by the Employer the "Safety Stats

for CRO for Past 20 Years" [Exhibit 43]. Dr. Macdonald concluded that its injury rate was "very low",

as compared to the findings of a mining company in the Wickizer study and even as compared to

non-safety sensitive workplaces. He noted that reported injury rates in the retail sector were

"much, much higher" than those at CRO. Thus, he concluded that the introduction of random

testing at CRO in such circumstances is of negligible benefit, commenting that even the Wickizer

study reported that companies with low injury rates are unlikely to benefit from multi-faceted drug

free programs.

[160] In summary, Dr. Macdonald opined that neither CROs safety record or random/post•

incident test results warrant the unilateral imposition of random testing; nor do its test results

establish that the testing program hasresulted in a safer workplace at CR

O.

[161] In response to questions concerning number of epidemiological studies, Dr. Macdonald

a

commented on the efficacy of various study designs. He accorded less weight to "case crossover"

studies than to "case control" studies on the basisof recall bias. For example, in one study [Exhibit

52, Tab 5], injured people in emergency departments were used as their own control subjects (as

opposed to having

within the 6 hours (prior to an injury) and their alcohol consumption

a

comparison control group); tasked with reporting on alcohol consumption

week earlier, the results of

a

which were then compared. In Dr. Macdonald's view, one's recall is less reliable over time;

meaning participants were more likely to accurately recall recent consumption with greater

accuracy,thus undermining the reliability of the data upon which the study's conclusions rested.

[162] Similarly, "prevalence studies" [Exhibit 54, Tab 3,Tab 5] are not "accident risk" studies and

therefore are less helpful from an epidemiological perspective in the absence of a comparative

analysis between two groups [the study group and the control group] that account for confounding

variables. Dr. Macdonald suggested that the information [data] obtained through

a prevalence

study might be used for control data, but that the weight of its conclusions is necessarily limited,

again from an epidemiological perspective.

[163] With respect to studies in which he and or others were involved [Exhibits 49, 51, 52], he

reiterated a number of times that the acute effects of drugs and alcohol result in performance

deficits, increases in collision risk and increases in safety risks. Dr. Macdonald, however, disavowed

reliance on the less weighty or rigorous studies which found, in particular, that residual effects of

marijuana lasted for up to 24 hours. For example, he noted that Couper and Logan's (US) paper,

Drugs and Human Performance Fact Sheets [Exhibit 51, Tab 5] failed to identify the evidence upon

which they relied in attributing periods in which residual effects of various drugs are found, which

Dr. Macdonald identified as a "big limitation".

[164] In Dr. Macdonald's words:

33

...there is evidence as I've agreed with you this morning, probably one of the first

things this morning, is the acute effects increases safety risks. When you go

beyond that, then some people may be affected, other people may not be. We

don't know the severity of the effects. The studies, the case control studies, using

your analysis generally don't find any relationship between testing positive and

safety risk. And that's the intervention that is being used. So, if you're using an

intervention that is ineffective, that's a waste of time as well.

[165] Unlike the Breathalyzer, urine testing does not measure impairment although Dr.

Macdonald acknowledged that it is possible that one who tests positive could be under the

influence of drugs. At the same time:

...there's a probability that you're not under the influence and again, if you look at

all the case control studies that look at driver risk associated with cannabis that

use urine tests to detect inactive metabolites, they don't find anything. So it has

predictive validity.

[166]

Notwithstanding the Employer's adoption of its risk prevention modality, from an

small effect size (CRO's employee

epidemiological perspective Dr. Macdonald opined that such

a

population) will not demonstrate that the implementation of random testing caused any reduction

in job accidents or created a safer workplace. Speaking to the reasonableness of the CRO's Random

testing program, Dr. Macdonald, citing his own 1985 study, stated:

Well,

I

think a Jot of, the majority of people that test positive are not a safety risk

and if you look at the strength of the effect size, maybe drug users as a group; if

you look at the studies, they might be 2 times more likely to have a job accident,

but if you look at other factors, relatively speaking, if you look at issues such as

stress, fatigue, cigarette smokers, are also twice as likely to have accidents in the

workplace. If you use the same criteria to, for other issues, you could find

strengths of relationships that are just as strong, but

I

don't see companies

implementing similar types of programs on cigarette smokers, on people

experiencing stress, those experiencing sleep problems, right? So again it's kind

of a relative thing. So you know

I

do wonder that the focus seems to be

exclusively on drug use, yet the research is just as strong for a host of other

factors.

The Effectiveness of Random Testing in Reducing Workplace Accidents

[167) Dr. Macdonald refuted Employer expert Dr. Beckson's opinion that random drug testing is

effective in reducing accidents in the workplace on the basis of the methodological limitations in

those studies upon which Dr. Beckson relied in reaching the stated conclusion, which included the

following concerns:

•

Effectiveness of mandatory alcohol testing programs in reducing alcohol

involvement in fatal motor carrier crashes {2009] Brady et al. [Exhibit 54, Tab 4]:

limitation: use of imputed rather than actual data.

34

•

Workplace drug testing and worker drug use [2007] Carpenter [Exhibit 54,Tab 7]:

limitation: this is a study on deterrence, not accidents.

Cost-effectiveness of interventions to prevent alcohol-related disease and injury in

Australia [2009] Cobiac et al [Exhibit 54, Tab 10]: limitation: This is an Australian

economic study looking at alcohol and not drugs.

•

Drug testing in the trucking industry: the effect on highway safety [2003]

Jacobson [Exhibit 54, Tab 13]: limitation: This is a very poor, fundamentally

flawed study which categorized American states as "drug testing states" versus

"non-drug testing states"; yet most the "drug testing states" implemented

policies to restrict random testing. The results indicate that states which

restricted testing showed a 10% improvement; a conclusion which does not

support the stated premise. In addition, this study is not about the adoption of

random testing.

•

Do drug-free workplace programs prevent occupational injuries? Evidence from

Washington State [2004] Wickizer et al [Exhibit 54, Tab 27]: limitation: study

design fundamentally flawed in the classification of the groups, low quality study

of little weight. Study in which the implementation of random testing was not

mandatory; only optional; non-equivalent comparative groups.

Effectiveness and benefit-cost of peer-based workplace substance abuse

prevention coupled with random testing [2007] Miller et al [Exhibit 54, Tab 21]:

limitation: conclusions not supported by the data: at the start of data collection,

the study company had slightly lower injury rates than those in the remainder of

the industry. After the implementation of the programs, the study company had

slightly higher rates of injury. The effectiveness of the adoption of the random

testing program is not discernible.

[168] Dr. Macdonald also noted other limitations in a number of the studies identified in Dr.

Beckson's report, some of which included "grey literature" [papers/presentations not generally

available to the public] and a lack of hard data to support the stated conclusions [Exhibit 50, Tab

37]; non-analogous policies [zero tolerance policy not akin to the Employer's policies];

a power

point presentation [Exhibit 50, Tab 13], the Blencowe study [non-analogous, use of oral fluid

testing] [Exhibit 61(a) para. 243].

[169] Dr. Macdonald was asked to comment on the reported conclusions in his 2010 study

[Exhibit 52, Tab 12] Testing for cannabis in the work-place: a review of the evidence in which he

stated, at page 412: "...although no definitive conclusions can be drawn about the deterrent effects

of drug testing, the preponderance of the research indicates that the proportion of employees who

test positive most probably declines after implementation of random drug testing". It was

suggested to him that that statement was more strongly supported random drug testing that did his

evidence during the hearing.

[170] The results reported in another study cited in Dr. Beckson's report, Gerber & Yacoubian

[Exhibit 61{a), para

. 252], in which injury rates in the study sample reduced 51% within 2 years of

implementation of drug testing were, in Dr. Macdonald's opinion, "unbelievable". He opined that

35

the reported reduction was simply not a credible finding, particularly in contrast to the prevalence

of positive drug tests at 10% reported in other studies. He further commented:

...this one [the study] I believe was a survey of companies and they asked them if

they had a drug testing program or not and they asked them about injury rates at

different points in time. In their study I believe they had something around

a 17%

response rate, again check check my figures, but it was low, it was in that

-

vicinity. Imagine getting a questionnaire about drug testing. Companies that feel

very enthusiastic about their drug testing program and that feel that it has an

effect on their workplace accidents are more likely to respond, so you're more

likely to the get - the study is biased in my opinion - you're more likely to get

companies who thought their program was successful.

[171] Dr. Macdonald did not dispute the "strong credentials" of another of the Employer's

experts, Dr. Guohua Li, and was asked to respond to a number of Dr. Li's comments and opinions

included in his reply report [Exhibit 53].

[172] Commenting on the conclusions reached by Dr. Li in a 2011 report concerning the

improvement of workplace safety with the adoption of drug testing [Exhibit 49, Vol 2 Tab 51], Dr.

Macdonald took exception to Dr. Li's methodological data collection methods. These methods

included the use of aggregated ecological data (similar to that which was used in the Quest

Diagnostics data) in comparing job incidents and the results of post-incident and random testing.

The absence of identified confounding variables such as age and sex, the limited sample size; the

failure to include co-variates in a "case control study"; and the use of urine samples, in Dr.

Macdonald's opinion, all challenged the validity of Dr. Li's stated results. Although the drug results

were individually categorized by type of drug, Dr. Macdonald took issue with Dr. Li's election to

"group" the data instead of creating odds ratios for the specific drug. Finally and importantly, Dr.

Macdonald pointed out that an "association" does not itself establish a "causal" link; a positive

post-accident test does not establish impairment at the time of the accident. For these reasons, Dr.

Macdonald concluded that Dr. Li's study, having

weight.

a number of design flaws, should be given limited

[173] Dr. Macdonald also disputed some of the conclusions reached by Employer experts Drs.

Kadehjian and Beckson in his reply report [Exhibit 48], particularly any reliance on and application

of studies of the acute effects of drugs and alcohol in the context of positive urine test results. In

Dr. Macdonald's opinion, the weight of the literature establishes that urine tests do not measure

impairment and cannot be used to measure performance deficits. He reiterated that there is no

established relationship between a positive urine test and crash risk and reiterated that the science

does not support the Employer's expert opinions to the contrary which, Dr. Macdonald surmised,

relied upon the results of lesser quality studies.

He reiterated that the higher quality

epidemiological studies looking at urine tests and safety risks find no relationship between them.

[174] In weighing the opinions and conclusions of various authors set out in epidemiological

studies and, in turn, the conclusions by the various experts rendered during the course of this

hearing, Dr. Macdonald was asked to compare those expressed by medical experts as compared to

those with degreesin such fields aspsychology and sociology. He had this to say:

36

I would, well, let's put it this way: I've worked in thefield for a long time, over 30

years. I've worked at the Addiction Research Foundation and the Centre for

Addiction and Mental Health, and now the Centre for Addiction Research. We've

had a lot of scientists, there's about 60 scientists doing this kind of research at the

Centre for Addiction and Mental Health; many of them have [a] background in

psychology. I'm not aware of anyone that has training to do research that has a

background in psychiatry so I, certainly in the field of substance use and abuse,

you come across many people...it's an interdisciplinary program and many people

with backgrounds in psychology, sociology, epidemiology are the big ones....if you

have training in methods and statistics, which psychology does, and typically

sociology, there's a high degree of overlap between the two.

[175] He was also asked to respond to

a number of Dr. Li's critiques, both specific and general, of

the opinions and conclusions expressed in his report [Exhibit 47] and those set out in Dr. li's reply

report [Exhibit 53], some of which are set out below:

•

Describing drug use in Canada as "rare" when the prevalence is over 10%; thus

Dr. Macdonald's conclusion does not meet the conventional definition for rarity

which, in epidemiological and statistics, would generally refer to events with a

probability of occurrence near zero.

Dr. Macdonald explained that in his view where 90% of people are not using

cannabis, that is a reasonable criterion for rarity; both in absolute terms and in

comparison to alcohol use. Dr. Macdonald did not feel"quibbling" about words a

useful exercise.

•

The Quest Diagnostics (US forensic toxicology data) [1988-2012], "definitively"

demonstrates that recreational drug users do represent a safety risk in the

workplace; undermining Dr. Macdonald's conclusion to the contrary.

Dr. Macdonald expanded upon his earlier evidence about the evidentiary

weakness in failing to address the absence of confounders and thus undermining

such a blanket conclusion, as follows:

We know younger people are more likely to use drugs; younger people are

also more likely to be in accidents. We know that males are more likely to

be in accidents and also use drugs. Sothese are two variables that need to

be controlled and in the analysis these are...what we call a bivariate

analysis, looking at the relationship between two variables [drugs or no

drugs in relation to an incident or a random test (no incident)], not taking

into account anything else and, no, I disagree with this interpretation and I

do.

I must say I find Dr. Li a little bit soft on the issue of confounders in his

studies. He's produced several studies where he hasn't addressed the issue

of potential confounders or included them. They're typically included

through multi-variate analysis where you control, take out the effect of

37

being male, take out the effect of age and then see if there's a relationship

between drug use and the incidents. Those are standard epidemiological

approaches that Dr. Li, I'm sure, is aware of and I'm sure that he would

agree with me.

...once you enter in confounders into the model, the relationship between

drug use and incidents disappears.

•

Dr. Macdonald's identification of only three variables to demonstrate causality in

epidemiological studies is "incomplete and inaccurate" as academia and

government agencies accept that there are nine variables.

Dr. Macdonald refuted this criticism, saying that Dr. Li had indeed adopted the

three requirements of causality [suspected cause must precede the suspected

effect in time, a statistical relationship two variables of interest must exist, and

the observed empirical relationship cannot be explained by a third variable], and

then added

"...some approaches that can be used to address these three

requirements", which he thought were good and helpful.

•

Dr. Li opined that epidemiology cannot prove causation with absolute certainty

and that ultimately a subjective judgment made by epidemiologists and others

based upon the evaluation and interpretation of existing evidence.

Dr. Macdonald disagreed and responded by explaining that where the

preponderance of the evidence consistently shows very strong relationships

between the variables [smoking and lung cancer, for example], that is enough

evidence from which one can draw an objective conclusion, having adhered and

applied epidemiological principles as a guide in weighing available evidence.

•

Dr. Macdonald's conclusions are based on dated and highly selective studies and

are not supported by the broad and up to date evidence base which he failed to

include in his report.

Dr. Macdonald responded by saying that he considered studies using urine tests

since it is urine testing that the Employer adopted in its random testing program.

Accordingly reporting the results of studies using blood tests (and thereby

looking at active THC and not the inactive metabolite identified in urine tests) is

unhelpful.

For example, a review of one of Dr. Li's studies, Drug use and fatal motor vehicle

crashes: A case-control study [Exhibit 54, Tab 18], revealed two weaknesses: bias

in the group design and failure to undertake

a multi-variate analysis, rendering

the stated conclusions unjustifiable. The study compared blood tests of drivers in

fatal accidents and comparing to those in a roadside survey; using blood tests in

the fatal accidents, oral fluids in the "control" population, being those who

agreed to participate. Dr. Li also did not specify whether he was looking at active

38

THC or the inactive metabolite with respect to cannabis. These biases point to

over-representation of drug use in cases and under-representation in the

controls and working simultaneously increase the odds ratios.

In another study upon which Dr. Li relied, Hartman and Huestis [Exhibit 54, Tab

10], supports Dr. Macdonald's opinion that testing people for TCH-COOH

[inactive metabolite] is not an accurate approach and that those studies using

urine tests have failed to find

a relationship or are otherwise fundamentally

flawed and therefore unreliable. Dr. Macdonald does not dispute that impaired

drug users are a safety risk.

•

Dr. Macdonald's reliance upon methodological limitations to discount studies

which demonstrate that drug testing, particularly random testing, improves

workplace safety amongst safety sensitive employees is misplaced "...and cannot

refute the overwhelming evidence that random drug testing is an effective

intervention to improve occupational safety".

In response, Dr. Macdonald reiterates that the use of ecological and aggregate

data bases is insufficient to support Dr. Li's conclusions. One requires "a lot

more" than the number of people testing positive compared to the number

tested to demonstrate "causation". The conclusions reached in studies which fail

to control for confounders are not reliable or persuasive. In none of the

evaluation studies reviewed have the authors looked at drug reductions in drug•

related incidents. The study attributing a 51% reduction in accidents due to

a

drug testing program is not credible, which contrasts decidedly with Dr. Li's

calculation of attributable risk at 1.5%. Dr. Macdonald is persuaded that reliable

epidemiological evidence establishes that only a very small proportion of job

accidents are related to drugs.

[176] It was put to Dr. Macdonald that if CRO is reducing drug use through its random testing

program, then it is also thereby reducing the chance of workplace accidents caused or contributed

to by drug use, to which he replied: "It's

a theory that you have, and the theory is not supported by

the science or by CRO's injury and testing results". [Exhibits 43 and 29].

[177] In Dr. Macdonald's opinion, based upon reliable epidemiological studies and CRO's injury

rates, the addition of random testing at CRO does not appreciably (or at all) reduce the risk of

accidents caused by drugs or alcohol and for that reason, Dr. Macdonald does not support random

testing.

Dr. Guohua Li

[178] As detailed in Dr. Guohua Li's curriculum vitae (Exhibit 73), he obtained a medical degree in

preventative medicine at Beijing Medical University {1984), a master's degree in biostatistics (MS

equivalent) at Tongji Medical University {1987) and a PhD in Public Health {Injury Epidemiology) at

Johns Hopkins University School of Hygiene and Public Health (1993). He is currently employed as

the M. Finster Professor of Anesthesiologyand Epidemiology at Columbia University, New York. Dr.

39

Li was qualified as an expert in these proceedings, without objection, in the following areas: Injury

epidemiology and prevention including: identification and evaluation of risk factor for accidents and

injuries, the interaction between alcohol and drug use in injury causation, the interaction between

alcohol and drug use in trauma outcomes, the evaluation of safety intervention including drug

testing programs in terms of their effectiveness in reducing accidents and injuries; epidemiological

research methodologies study design and evaluation; and preventive medicine particularly in the

areas of anaesthesiology and the health outcome.

[179] Dr. Li was asked to prepare

a written report in response to Dr. Macdonald's report which,

along with supplementary materials, were entered as exhibits 53 and 54 (Tabs 1-27) in these

proceedings. While these epidemiological experts generally agreed on the focus and scope of

epidemiological research, Dr. Li disputed many of the findings, opinions and conclusions expressed

in Dr. Macdonald's report (Exhibit 47). In doing so, Dr. Li described what he viewed as

methodological errors or shortcomings, criticized Dr. Macdonald's reliance on outdated research

and his faulty interpretation of data, detailed in his evidence set out below.

[180] Dr. Li acknowledged that his experience most frequently addressed the US drug-testing

studies and laws. He was not particularly familiar with the prevalence of (or lack thereof) of

random testing in Canada in general.

[181] Dr. Li provided a detailed overview of the study of epidemiology, the details of which are set

out in his report. His evidence relating the issues of random testing and, in particular, to CRO's

random testing program is set out below.

The Causal Relationship between Drug Use and Occupational Injuries and Accidents

[182] Dr. Li testified that recreational drug users do represent a safety risk in the workplace and

gave little weight Dr. Macdonald's reliance upon older studies that failed to find

a statistically

significant crash risk associated with a positive urine test (identifying the inactive metabolite TCH•

COOH). He did so on the basis not only that the composition/concentration of the drug had

changed over the years but also the evolution of the research into these areas, but having regard to

more recent areas of research which found a positive correlation between drug use and accident

risk.

[183]

He explained that incidents of recreational drug use in specific risk in safety sensitive

workplaces resulted in the adoption of alcohol and drug testing programs in the United States and

in other countries; perhaps precipitated, in part, by such 1980's ¹¹disasters" as the Exxon Valdez, in

11

which pilots or operators directly responsible for operational safety were found to be Under the

influence" of drugs or alcohol.

[184] He referenced one of his own epidemiological studies that examined drug violations and

accident risk and determined an increased risk of accidents associated with drug use. [Drug

violations and aviation accidents: findings from the US mandatory drug testing programs {2011):

Exhibit 54,Tab 17].

40

[185] Another of his studies found that all drugs, including marijuana and other

stimulants/narcotics, are associated with "significant increase risk for fatal crash involvement".

Marijuana is associated with doubling the crash risk in drivers. Marijuana and alcohol use suggests

an odds ratio in this study of 23. [Drug use and fatal motor vehicle crashes {2013}: Exhibit 54, Tab

18].

[186] In Dr. Li's opinion "any increased risk should be a concern" and suggested for that reason

those US states which permit the use of medical marijuana have also prohibited driving under its

influence. He also referenced Quest Diagnostics 2012 drug testing data of US employees in safety

sensitive roles which reported that 1.4% tested positive for illicit drugs in random testing and 2.4%

under post-accident testing. In Dr. Li's view, the prevalence of drug use in those in safety sensitive

positions being above zero means that drug users are a safety risk for occupational accidents, and

noted that even Dr. Macdonald calculated a significant odds ratio usingthis data at 1.6 or 1.8.

[187] Dr. Li testified:

I think if you look at the entire body of relevant evidence...it's clear that there is

a

causal relationship between drug use and occupational injuries and accidents. I

think that statement is a general causal statement and is widely accepted in the

research community at this time. You can always point to something elusive,

alternate

explanations but

we can falsify

any plausible alternate

examinations...but if you don't give a specific alternative explanation which is a

very verifiable or testable, then we're falling in sort of a trap...the discussion

would not go anywhere.

Use of Urine Tests

[188] Dr. Li opines that a positive urine test is an appropriate measure to demonstrate the causal

relationship between drug use and occupation injury and accident. In doing so, he referred to the

findings in Marijuana use and motor vehicle crashes {2012) [Exhibit 54, Tab 19, Table

1Page 68]

which lists the source of the exposure data whether from self-reports, urine tests, blood test or

urine and/or blood tests. He noted that urine test results in the Brault study did find an increased

risk of motor vehicle crashes associated with marijuana use and pointed out that more recent

studies have also found a positive association between marijuana/drug use and crash risk, as in his

2013 study of Drug use andfatal motor vehicle crashes [Exhibit 54,Tab 18].

[189] Dr. Li agreed with Dr. Macdonald that a urine based marijuana test does not detect

impairment, however, he explained, that is not its purpose. Random testing of drugs based upon

urine samples is

a risk management prevention program. It is not designed or intended to measure

"impairment" per se. Impairment is not demonstrated by a per se number but is rather defined by

different methods and different considerations (dose, weight, tolerance level,for example).

[190] In direct examination, Dr. Li took issue with Dr. Macdonald's conclusion that "studies using

urine tests have failed to find that those with positive tests are significantly more likely to be in

collisions that those with negative tests". In doing so, he reference a number of studies that

supported his view. However, in cross examination, he conceded that a number of the studies that

he had referenced had either not conducted urine tests or had not demonstrated an association

41

between cannabis and crash risk. Those studies included: Callaghan [Exhibit 54, Tab 6], Asbridge

[Exhibit 54, Tab 2], Asbridge [Exhibit 54, Tab

Hartmann [Exhibit 54,Tab 11].

1 - only 3/9 studies did not use urine testing],

[191] In several studies, where the findings reported by the authors were put to Dr. Li, he refuted

the expressed findings on the basis of his calculations of the raw data identified by the studies'

authors. [For example,Movig, Exhibit 49,Vol. 2 Tab 66 and Wickizer, Exhibit 54,Tab 27].

[192]

When questioned on his opinions of the Wickizer study [Exhibit 54, Tab 27], Dr. Li

voluntary aspect of the drug-free workplace program.

acknowledged that random testing was

a

However, he stated that the authors' purpose was to evaluate the program itself, and not its

individual components. He also acknowledged that this study did not identify companies that

already had a drug testing program in place in the pre-implementation period or those which

continued the drug testing program upon the "expiry" of the incentive program; each of which

might impact upon the findings reported by the authors.

Drop In Positive Random Test Results

[193] Dr. Li opined that a decline in positive drug tests over time within

a random testing program

is a reflection of its deterrent effect, nothing more. He found implausible that the drop in positive

test results could result from other explanations in the absence of cogent evidence to support an

alternate conclusion.

[194] In particular, Dr. Macdonald's suggestion that the use of adulterants or substitution

products could account for reduced positive drug tests did not "make sense" to Dr. Li. In his own

study of aviation employee drug testing data, Dr. Li found only 1% of the positive drug tests were

due to adulterated or substituted urine samples.

[195] Dr. Li also noted that the prevalence of drug use in the general population over the same

time period did not demonstrate

a parallel to the observed decrease in the prevalence of positive

employee drug tests. In Dr. Li's opinion drug use among the general population has remained fairly

stable although the use of specific drugs has changed. He reported that marijuana use is now the

most commonly detected substance in a positive drug test.

Drug Testing Improves Workplace Safety

[196] In Dr. Li's opinion, the deterrent effect of drug testing is demonstrable. Companies who

drug test their employees are less likely to have employees who use drugs than companies who do

not test, particularly amongst employees in safety sensitive roles. {Workplace drug testing and

worker drug use {2007}: Exhibit 54,Tab 7].

[197] He opined that to the extent that Dr. Macdonald found no persuasive evidence to link drug

testing and increased workplace safety on the grounds of methodological study limitations, that

analysis is based upon two fundamental misconceptions. In the first place, Dr. Li stated that Dr.

Macdonald improperly applied individual data based upon a single employee's performance or drug

use behaviours (specific causation) to the general causation (population data) question: does drug

42

testing improve workplace safety? He explained that the specific causation question would only

arise in an analysis of a particular workplace accident or injury. He identified Dr. Macdonald's

second misconception as his use of ecological fallacy to refute what Dr. Li referred to in his report as

"...overwhelming evidence that random drug testing is an effective intervention to improve

occupational safety". Dr. Li stated that any suggestion that a causal inference can only be made

using individual data is misplaced. In his view, ecological fallacy (referencing the possibility of error

when an inference is made about an individual based upon population data) simply does not apply

in this context because the question remains one of general causation.

[198] Dr. Li also responded to Dr. Macdonald's criticism of the Wickizer study: Do drug-free

workplace programs prevent occupational injuries? Evidence from Washington State (2004) [Exhibit

54, Tab 27]. He believed that Dr. Macdonald mis-read the paper and its results. The study

reviewed 3 periods: before (2 years prior), during (3 years of the program) and after (3 years

following "expiry" of the program) in connection with implementation of the particular intervention

(the drug-free workplace program). Reasonable comparisons would be before and during the

intervention or between during and after the interventions. Dr. Macdonald instead interpreted the

pre and post data as a comparison; periods in which the drug-free program was not in place.

[199] Dr. Li also relied upon the Snowden (Exhibit 54, Tab 25) and Brady (Tab 4) studies which

found that the introduction of mandatory alcohol testing saw a reduction in alcohol involvement in

fatal commercial truck crashes and in fatal motor vehicle crashes. Dr. Li conceded that fatal crashes

represent only 1% of crashes and suggested further study into non-fatal crashes would be useful.

[200] The Board was referred to the findings of the Miller study: Effectiveness and benefit-cost of

peer-based workplace substance abuse prevention coupled with random testing (2007) [Exhibit 54,

Tab 21], in which it was reported that injury rates in those trucking companies that implemented

the workplace substance abuse program in combination with random alcohol and drug testing

significantly reduced injury rates in those companies.

[201] On the issue of the effectiveness of random testing in reducing job accidents and injuries,

Dr. Liopined:

Among all the testing programs (pre-employment testing, random testing, follow•

up testing and so on), random testing represents the most important or powerful

deterrence effect, and the observed sort of decline, remarkable decline of positive

drug tests among employees in the past 25 years,

I

would say the vast majority of

that reduction would be attributable to random testing because...over 90 percent

of actual alcohol and drug tests on employees were done on the random alcohol

and drug testing program. Secondly, random test has several other advantages.

First it is non-discriminative...regardless of your age, your gender, your position,

as one of the employee group you have an equal opportunity to be selected for

testing....Secondly, random testing is essential to provide baseline under

surveillance data for evaluation and for monitoring of the drug use problem in the

workforce. There is no alternative way or testing programming to provide the

necessary data other than random testing to accurately understand the

43

prevalence rate or the magnitude of the drug use problem in the defined

employee population.

Alcohol

[202] According to Dr. Li, within the context for a "zero tolerance policy" adopted to prevent

injuries and to manage potential risk, .02 BAC level refers to the minimum reliable testing result

a

based upon existing technology to identify an employee who is at increased risk. Thus the purpose

of testing at this level is to eliminate potential and not actual risk of injuries or accidents. In his

view, this is a reasonable cutoff limit to achieve the policy goals. Alcohol involvement and the

effect of alcohol on injury depends on the severity of the injury; studies demonstrate the more

severe the injury, the greater the effect of alcohol. Thus studies will have differing results

depending upon whether fatal or non-fatal injuries are under review.

[203] The Blomberg study, The Long Beach/Fort Lauderdale relative risk study (2009) [Exhibit 49,

Vol.

1Tab 2] cited in Dr. Macdonald's report, was raised in connection with CRO's adoption of a .02

BAC cutoff for alcohol testing. Dr. Li stated in his report [Exhibit 43] that the Blomberg study

suggested that a BAC of .02 is associated with a 3% increase risk of being in a motor vehicle crash as

compared to a BAC of .00. That conclusion was challenged by the author's finding, which reads in

part

:

When adjusted for nonparticipation and missing data bias, the results suggest

that the small dip observed at .01-.03 BAC in the unadjusted risk calculations

(columns 2 or 3 in Table 3} may be an artifact of sampling errors and small

sample biases. The magnitude of the adjusted risk elevations is too small in

relation to the standard errors of the model, however, to reject either the

hypothesis of no increase or even a hypothesis of slight decreases in risk at .01 -

.03. Regardless of the direction of the risk change at these low BACs, however,

the size of the relative risk deviation from unity is sufficiently small to be of no

practical consequence. [emphasis added].

[204] Dr. Li explained that his comments/conclusions were again based upon the raw data

reported in the study and not the author's interpretation of that data. At the same time, Dr. Li

conceded that he did not say whether that increase was statistically significant and that

it's not statistically significant."

"....clearly,

CROs Injury Rates

[205] Dr. Li concluded that the injury rates in the mining industry in Washington State identified in

the Wickizer study [Exhibit 54, Tab 27] were similar to those reported at CRO [Exhibit 43]. However

that conclusion was based upon his understanding that the "TRIF'' injury rate at CRO was equivalent

to the "4 days lost time" injury rate recorded by Wickizer. He also opined that Dr. Macdonald

calculated injury rates at CRO "...based on the most restrictive standard criteria and compared [it]

to all reported injuries presented in Wickizer's study, Table 1", which Dr. Li felt was inappropriate

because it ignored the severity of injury in computing injury rates.

44

Other Risk Factors

[206] Dr. Li acknowledged that other risk factors can impact upon the safety of

a workplace; such

as job/spousal/family/financial stress, smoking and fatigue. However, he opined that only those

risk factors which are amenable to modification without extraordinary effort are the focus in risk

assessments. Factors that are not easily changeable (gender, age, sex} are not generally

incorporated into a risk management response.

Dr. louis Hugo Francescutti

[207] Dr. Francescutti is an emergency room physician at the Royal Alexandra Hospital and at the

Northeast Community Health Centre Emergency Departments in Edmonton, Alberta.

[208] Dr. Francescutti was ultimately qualified as an expert witness in this proceeding, without

objection, in the following areas of injury; injury control and prevention; the role of alcohol and

drug use in injuries; and, the manner in which random testing can contribute to reduction of

injuries due to alcohol and drug use. His report and supplemental materials were entered as

Exhibits 13 and 15 respectively.

[209] The substance of Dr. Francescutti's opinion is set out below:

•

Injuries and substance abuse are major problems in our society and in

Alberta.

There are ways to prevent injuries from occurring: through education,

engineering, enforcement and economic incentives.

•

Substance abuse is the third leading cause of injury deaths in Alberta.

Random testing is the greatest deterrent. The only people who have to

worry about the adoption of random testing are those who are using

drugs/alcohol and testing positive, which is an indication they may have a

problem. Those who test positive are offered help which will reduce the

likelihood of injury and make it less likely he will see them in the Emergency

Department.

•

The Teck program is very, very important and can contribute significantly to

the literature and injury prevention.

[210] Dr. Francescutti discussed the distinction between accidents and injuries; the former being a

random chance event while the latter, whether intentionally or unintentionally caused, being a

largely preventable disease of widespread consequence. He estimated the cost of injuries to the

economy at $15-$18 billion dollars each year, comprised of direct costs to the health care system

and the indirect costs of lost time, lost productivity and lost taxes. According to his review of the

literature, he estimated that 95% of all injuries that occur are both predictable and preventable.

[211]

In his view, the focus should shift to one of injury control: prevention, acute care and

rehabilitation.

45

[212] Dr. Francescutti identified the policy elements of prevention: education, engineering

solutions, enforcement (rules and regulations) and economic incentives/disincentives. In his

experience, enforcement is usually the option with the greatest deterrent effect. Although he was

cognizant of the ongoing debate between "personal freedom" and risk-reduction measures, he is of

the view that steps to reduce injury are generally not issues of individual liberty in any event, but

ones of societalbenefit; for the greater good.

[213] Dr. Francescutti stated that Alberta regularly records amongst the highest potential years of

life lost (PYLL) rates due to injury across Canada. He noted, by way of example, that only Alberta

has failed to adopt provincial regulations for farm workers and has amongst the highest farm injury

rates; was the last province to adopt mandatory seatbelt legislation and the last province to ban

riding in the back of

a pickup truck. In his view, Alberta is still the "wild west", a place of greater risk

tolerance and one in which people do not wish government to tell them what to do. He suggested

that we need to get over the attitude that "it's my business", as we are spending considerable tax

dollars to support people's choices.

[214] Dr. Francescutti testified that the effects of alcohol are present much earlier than merely

when one is approaching 0.08 BAC ("Legal Limit").

In his opinion, noticeable effects can be

recognized at 0.02 BAC, and which increase incrementally thereafter. He spoke of the "pleasure

zone" that people aim for at BAC concentrations of 0.02 - 0.059 but said once consuming alcohol, it

is difficult to discern the zone. He opined that once at the Legal Limit, it is assumed that you cannot

drive. He also explained that because of the scientific evidence of noticeable impacts upon driving

performance at BAC's of 0.05, both BC and AB introduced road side suspensions at that blood

alcohol concentration level.

[215] Dr. Francescutti opined that without question, there is drug and/or alcohol use in the

workplace. He said that people are consuming a lot of drugs and alcohol and if they are working,

then it is not surprising to find it there. In support of his opinion, he referenced a 2006 USA Report

[National Center for Health Statistics, Exhibit 15, TAB 14]) in which reported that 12.7 million out of

20.6 million adults with substance abuse or dependence were employed full-time, which Dr.

Francescutti said tells us you will find drug/alcohol use in the workplace. He said that without

doubt, choosing to show up for work impaired can cause injury to oneself and to others.

[216] At the same time he acknowledged that factors other than alcohol or drugs can cause

impairment in the workplace; factors such as fatigue, and believes that policies should be assessed,

consider, weighted and, where appropriate, adopted in similar fashion to address any identified risk

elements present in a work environment.

[217] In Dr. Francescutti's view, the role and purpose of random testing is to identify those who

may have a drug and/or alcohol problem and to offer help. He opined that "it is the best of all

worlds" where an Employer makes an effort to identify individuals who may have an issue with

drugs or alcohol and offer an opportunity for assessment and provide an opportunity to get better.

[218] In Dr. Francescutti's experience, random testing is illustrative of a culture of safety; one in

which an employer does whatever it can to make sure no one gets hurt on the job. He believes that

random testing is an effective tool because people do not know when they might be tested and

46

thus it can effect behavioral change around the use of drugs and/or alcohol. In his words: If you

pay someone 100% of their salary, you expect 100% of that person to show up at work; not 75%,

not 65%. An employer is entitled to 100% of the employee being at work that day;nothing less.

[219] While acknowledging that random testing is much less common in Canada than in other

jurisdictions such as the United States, Dr. Francescutti feels that workplace policies that support

random drug and alcohol testing show "great promise" as a means to improve workplace safety.

Dr. Mace Beckson

[220] Dr. Beckson is currently certified by the American Board of Psychiatry & Neurology in

psychiatry, addiction psychiatry and forensic psychiatry and has obtained additional certifications as

detailed in his curriculum vitae, entered along with his report and reply report as Exhibit 61in these

proceedings. He is currently Medical Director, Psychiatric Intensive Care Unit, Veterans Affairs

Greater Los Angeles Healthcare System, carries on a private practice and acts as a medical-legal

consultant. He was qualified as an expert in these proceedings, without objection, in the areas of

forensic psychiatry, addiction psychiatry, addiction medicine in the areas of the assessment and

treatment of drug and alcohol abuse and addiction in patients, cognitive and behavioural

psychology, pharmacology, psychopharmacology as it relates to alcohol and drugs of abuse;

forensic Toxicology of substances of abuse in the areas of DUI results, workplace drug testing and

post-mortem toxicology for alcohol and drugs of abuse; risk assessment and risk management in

relation to addiction, violence and suicide and clinical research in relation to alcohol and drugs of

abuse.

Dr. Leo J. Kadehjian

[221] Dr. Kadehjian earned undergraduate degrees in Chemistry {Harvard University, 1967) and in

Organic Chemistry {Massachusetts Institute of Technology, 1972), and a Ph.D. in Biochemistry

{Stanford University, 1977). Dr. Kadehjian was qualified as an expert witness without objection in

the areas of the pharmacology and toxicology of drugs of abuse and alcohol; the psychomotor and

cognitive effects of alcohol and drugs including in relations to safety risks flowing from and

incidental to his expertise in pharmacology and toxicology; the neurobiology of addiction; the

scientific methods of drug and alcohol testing and the interpretation of drug and alcohol test

results; and the design and evaluation of workplace drug testing programs policies and procedures.

His curriculum vitae, report of February ih, 2014 and reply report of March lOth, 2014, along with

an extensive binder of supplemental materials were entered as Exhibits 66, 67, 68 and 69 [Tabs 1-

40] respectively.

[222]

The Board was provided with a helpful overview of the elements and characteristics of

substances of abuse and addiction by Drs. Beckson and Kadehjian, a summary of the most relevant

particulars of which are set out below.

47

Pharmacology and Toxicology of Substances of Abuse

[223] Being legal, available and culturally accepted, alcohol is the most commonly used substance

of abuse or addiction. As alcohol consumption increases and continues

a central nervous system

depression develops which undermines the "executive functioning" of the brain. Cognitive

impairment can arise during periods of intoxication or its after-effects.

[224] Alcohol is eliminated from the body at a population average linear rate approximately .019

percent per hour; or one drink per hour. Accordingly, it would take approximately 4 hours to

eliminate a blood alcohol concentration (BAC) of .08.

[225] Alcohol tolerance generally increases with use, thus a particular blood alcohol concentration

level itself is not necessarily a measure of impairment. Effects on cognition vary; some will manifest

changes at relative low levels of alcohol consumption while others may continue to perform routine

tasks without obvious difficulty.

[226]

unexpected events. Dr. Beckson explained that it was for this reason the US Department of

Transportation (DOT) adopted a .02 BAC cutoff; it operates both to reduce risk and act as

These experts agree that alcohol consumption impacts on one's ability to respond to

a

deterrent as people will change their behaviour to avoid

(or cannot) are indicative of having an "alcohol problem".

a positive test result. Those who do not

[227) Dr. Kadehjian opined that "there is no safe amount" of alcohol consumption; impairment of

safety-related functions can result after a single drink. He reported that a voluminous amount of

the literature clearly shows the effects of some degree of impairment of safety-related functions at

BAC levels as low as 0.01or 0.02, and explained that some countries have adopted "zero" as a cut•

off in response. He disagreed with Dr. Macdonald's conclusion that a cut-off of 0.02% is too low to

represent a meaningful increased safety risk. In doing so he pointed to contrary findings of the

more recent studies and concluded that the Employer's alcohol cut-off at 0.02% BAC is "absolutely

sound" and that, in his view, Dr. Macdonald's position on this issue is "untenable".

[228] These experts also identified cognitive deficits associated with an alcohol "hang-over",

which generally arise the "morning after" drinking to a high BAC level. The severity of the cognitive

deficits correlates with the severity of the hang-over; this is so even in the absence of any

Breathalyzer reading at that time.

[229] These cognitive deficits include headache, reduced attention and reduced concentration in

sufficient degree to interfere with one's ability to perform routine work activities. Dr. Beckson

reported that alcoholics may continue to experience cognitive dysfunction up to a year from

abstinence. In such circumstances, clearance to return-to-work (when and under what conditions)

would necessarily need to be assessed on an individual basis without reliance on average outcomes

reported on population-level studies.

48

[230] Amphetamines were described as potent stimulants that are abused for their stimulant

effect. Dr. Kadehjian explained that lower doses can enhance alertness and attention, reportedly

used by pilots, truck drivers and students to stay awake. Therapeutic effects have also been

reported for disorders such as ADHD and obesity. He described acute effects as "highly rewarding"

and easily addictive, through the dramatic release of a neural transmitter (dopamine) in the brain

which can last from 8-12 hours (or longer), depending upon the dose;and like cocaine, is followed

by a "crash" that can last 2-3 days. Dr. Kadehjian said that the "crash" effects can be worse than

the acute effects of the drug; both of which create

a safety risk in a safety sensitive workplace.

[231] Studies of the use/misuse of amphetamines have identified cognitive, psychomotor and

performance effects which have also been associated with increased crash risk. Dr. Kadehjian said

that amphetamines are highly damaging to the brain's neural pathways that govern impulse-control

and weighing consequences of behaviour. Neuronal damage can persist for months, depending

upon the extent of use. He reported that those addicted to methamphetamines generally have

poor treatment outcomes as a result.

[232] The cut-off level for amphetamines and methamphetamines used at CRO is designed to

identify use within the previous day or two. How long an individual might "stay positive" is dosage

dependant.

[233] Cocaine was described as

a very addictive stimulant which changes how the brain works.

Effects of a high adrenaline state cause different impacts amongst individuals; some are euphoric

while others are agitated, which Dr. Beckson described as analogous to a "fight or flight response".

While studies have demonstrated that low doses of stimulant drugs improve attention; the same is

not true of higher doses. Because its acute effects are "short-lived", users often take one or more

doses over the course of an evening; following a "crash" which was estimated to endure into the

next day. This is true for even casual or recreational users.

[234] Because cocaine is quickly metabolized in the body, it will be identified in a urine test as

a

metabolite, similar to marijuana. According to Dr. Beckson, the presence of a cocaine metabolite in

a urine test will demonstrate that the donor has used cocaine recently, something you would not

otherwise know unless use was disclosed by the donor. Even with abstinence, elements of

cognitive impairment can continue for several weeks. During

positive by urine but negative by blood.

a "crash" period, the user would test

[235] Dr. Kadehjian said that drug tests are designed to identify recent use; within the previous 1-

2 days or so which, in his opinion, correlates to the time frames of increased risk of deficits whether

as a result of the drug's acute effects or the subsequent "crash".

[236] Dr. Beckson opined that abuse/addiction to prescription pain medications to get high is

becoming

a greater problem than that for illicit opiate use. Like alcohol, opiates act as a central

nervous system depressant which can result in a physical dependence and once established, can

cause significant physical and cognitive withdrawal effects as the effects of the drug wanes and the

user's attention shifts to relieving the stress of withdrawal. Thus the greatest level of "impairment"

may occur with a blood level of zero. Dr. Kadehjianconcurred.

49

[237] Marijuana is

Kadehjian explained that it has been prescribed as

a

widely used fat-soluble drug whose main psychoactive ingredient is THC. Dr.

therapeutic use for glaucoma/ocular

a

hypertension and AIDS wasting syndrome. Medical marijuana use has been approved in nineteen

US states and has been legalized in Colorado and in Washington State. Because marijuana is stored

in fat cells, it is not quickly eliminated from the body. Dr. Beckson estimated that it takes

approximately 2-4 hours before metabolized THC is detected in the urine and, depending upon the

dosage taken, low levels of THC can be detected in the blood for 6-24 hours after the "subjective

high" has ended.

[238] Several metabolites of parent drug THC are picked in an initial urine test screen, only one of

which is examined in a confirmation test, THC-COOH.

[239] Both experts agree there are acute and sub-acute/carry-over effects with marijuana use.

They did not, however, agree on the duration of those effects. Dr. Beckson estimated the acute

period of intoxication at 4-5 hours, causing significant cognitive effects and residual effects for 4-24

hours thereafter. In Dr. Kadehjian's opinion, the literature demonstrates that the acute effects of

marijuana last 8, 12, even 24 hours after use and also documents both the withdrawal and

abstinence effects of marijuana. In support of his opinion, Dr. Kadehjian referenced

a May 2014

study out of the Netherlands [Hunault, Acute subjective effects (May 2014}, Exhibit 71] and the

Brenneisen study [Exhibit 69, Tab 6), the latter dealing with marijuana detection times.

[240]

Dr. Beckson opined that both acute and residual effects of marijuana use can generate a

degree of "impairment", particularly in circumstances demanding maximal cognitive use such as in

an emergency situation. He referenced a number of studies in support of his opinion. [Marijuana

carry-over effects on aircraft pilot performance: Leirer {1991} [Exhibit 50, Tab29]; [Acute and

residual effects of marijuana: profiles of plasma THC levels, physiological, subjective and

performance measures: Heishman {1990} [Exhibit SO, Tab18].

[241] Dr. Beckson conceded that most studies do not establish

a relationship between a positive

urine test for marijuana and risk of accident and injury, but explained that the pharmacokinetics of

marijuana factor into that result. He explained that if a person is at peak marijuana concentration

at the time of an accident that level will have dropped very significantly by the time blood work is

done in an emergency department. Thus,if below the cut-off testing level, the test will be negative.

Similarly,if conducting

period of greatest intoxication. These factors impact upon the outcome of studies examining urine

testing and crash risk. That said it was acknowledged that there is a greater odds ratio of between

positive marijuana blood test in crash drivers study groups.

a urine test for marijuana, the metabolite will not be detected in urine at the

,

a

[242] During cross-examination, Dr. Kadehjian was asked to comment on a study that concluded

that detection of the major marijuana metabolite (THC-COOH) in urine was not reliable indication

a

of recent cannabis use or impairment and that the detection of the active ingredient THC in the

blood was the only safe method to determine recent exposure to cannabis. [Raemaker's study

[Exhibit 49, Vol 2, Tab 72].

Dr. Kadehjian did not accept the author's because of adequate

particulars to support the statement. In his opinion, the Raemaker study applies too broad a brush.

While he agrees that urine testing will likely not pick up marijuana use an hour or two earlier, when

one would be most impaired; but it may. It may also pick up the chronic user who did not use

50

marijuana within the last several hours. However, it will show up within hours and during a period

in which users have shown psychomotor cognitive impairment. The urine test will identify an at-risk

employee.

CRO's Random Testing Program

[243] Both experts reiterated that CRO's testing program is not measuring risk, it is identifying

risk. In Dr. Beckson's view, a positive urine test, using statistical probabilities, indicates someone

with a drug problem and, more likely than not, is someone who has come to work impaired at least

some of the time and is an elevated safety risk at work as a result. In his opinion, once a random

testing program is understood by the workforce, those who test positive are more likely those who

have

a substance abuse problem. In essence, it separates those who use compulsively from

recreational users. Its purpose is to prevent or lower the risk of impairment; and not to prove

impairment. Its goal is zero percent positive random tests. By continuing to detect and remove

those who test positive from the workforce, the probability of

a substance-related accident is also

reduced. Thus low or zero post-incident positive test results is not an indication that the random

testing program is ineffective or unnecessary.

[244] Dr. Kadehjian concurred. He described the goal of random testing programs is to minimize

risk from drug-using employees in

a manner which reflects the realities of those often working on

their own in a safety sensitive workplace. In his view, CRO's testing program is an accurate and

reliable tool for identifying users and for deterring drug use.

[245] Accordingly to Dr. Beckson, Dr. Macdonald failed to address the fundamental feature of a

random testing program which, in essence, is

that neither urine nor blood laboratory tests establish impairment.

a

behavioural risk reduction program and reiterated

Rather, a positive test

establishes recent use (during the outer limit of the window of detection for that particular drug)

and therefore identifies someone at an elevated risk of performance deficits in the workplace.

[246]

He was asked about the justification for random testing in circumstances where a majority

of those with positive test results were determined to be without dependency or addiction; in

short, the recreational user. Dr. Beckson commented that at the beginning of the dynamic process

of the implementation of the intervention (random testing); people are still getting used to the

process and learning to take it seriously. In time, recreational users will change their behaviour to

avoid

a positive test result, leaving only compulsive or chronic users who test positive.

[247] Under CROs drug and alcohol protocols, those identified with a substance dependency or

addiction are referred to mandatory treatment programs (whether residential or outpatient) and

returned to work under the terms and conditions of a monitoring agreement, which includes

periods of unannounced testing of up to 24-months, aimed to reduce the risk of relapse. In Dr.

Beckson's opinion, these drug-free workplace protocols create deterrence and accountability,

elements which assist in overcoming dependency/addiction problems and together with the other

components of comprehensive drug and alcohol treatment policies,decrease risk in the workplace.

[248] Dr. Kadehjian opined that CRO's screening and confirmation test protocols, utilizing

standard test cut-offs designed to detect recent use, covering periods of both acute and

51

withdrawal/crash effects, are both accurate and reliable; meeting approved FDA standard /DOT

standards and utilizing a recognized laboratory for its confirmation tests. It is only in the case of

chronic users of marijuana who could test positive using these cut-offs for up to three weeks.

So

I

would say that the tests demonstrate sufficiently recent use that an employer

has a justified concern that at least at some point in time over the previous 1 to 2

days there is an overlap with their being at work and therefore a risk that there

was/were effects of this drug.

[249]

In his view, urine testing reflects the practical realities of workplace testing; no invasive

punctures to the body but rather a waste product that people voluntarily relinquish.

Performance Deficits

[250] In Dr. Beckson's view there is no question that drug and alcohol use/abuse cause

performance deficits which can cause or contribute to injury or accident in the workplace, moreso

in

a safety sensitive work environment. That said, he conceded that ridding a workplace of

drug/alcohol related deficits will not prevent injury or accidents in the workplace. He agreed that

cognitive deficits in the workplace can arise from a host of factors other than substance use; factors

such as fatigue, family stressors,custody issues, caffeine intoxication.

[251] Dr. Beckson disputed Dr. Macdonald's conclusions concerning timeframes for being "under

the influence" of a number of drugs and the corresponding detection periods, set out in Dr.

Macdonald's report [Exhibit 47, page29].

[252] In Dr. Beckson's view, the period of impairment extends beyond periods of acute

intoxication which he presumed was what Dr. Macdonald referred to as being "under the

influence". He opined that it is not necessary to ingest drugs or alcohol in the workplace in order to

suffer from sub-acute performance deficits. It is therefore necessary to incorporate into period of

performance deficits the safety risks caused by "crashes" following the use of stimulants, for

example, which in his view is worse that than the actual period of intoxication. [Exhibit 61(c), page

27]

[253] Dr. Beckson distinguished his assessment of the time periods for drug detection and

increased risk of performance deficits from Dr. Macdonald's comparison of periods of impairment

with the period during which one might test positive on a urine test.

[254] Dr. Beckson opined that using only periods of acute intoxication to signify impairment is

inadequate. In any event, he also disputed the reliability of the studies upon which Dr. Macdonald

relied in identifying drug detection periods in urine [Exhibit 61(c),para. 55].

[255] In Dr. Beckson's opinion, the realistic timeframe for a period of increased risk of deficits

correlates to the period of testing positive for drugs with either blood or urine. Anything which

impairs cognition is risk-elevating, whether through a one-time or through chronic use.

52

[256] He is similarly not persuaded by what he referred to as "Dr. Macdonald's academic

exercise" of simply calculating odds ratios of risk of injury with consideration of potential

a

confounding variables which, in turn, might even further reduce the odds ratio of risk to "no

increased odds". He pointed out that urine testing for marijuana will in any event artificially

depress an odds ratio since one would achieve

a "false negative" during the period of acute

intoxication because the presence of THC is not detectable in urine. Instead, Dr. Macdonald

stressed only the "false positive"; meaning one who tests positive for urine is not acutely

intoxicated and therefore no greater safety risk merely by virtue of a positive test result.

[257] Similar, during cross-examination Dr. Kadehjian was asked to clarify whether those who test

positive through a urine test represent a greater risk of crash or workplace accident than those who

do not. In response, he stated testing negative does not mean "no risk". However he confirmed

that that in his view a positive test result corresponds with an increased risk.

VI.

SUBMISSIONS OF THE PARTIES

The Union:

[258] The grounds upon which the Union relies in challenging the Employer's Policies are

threefold:

•

The Policies constitute an unreasonable work rule.

The Policies are discriminatory in violation of the Alberta Human Rights Act,

RSA 2000, c.A-25.5, s. 7 and are not justifiable as

requirement pursuant to s. 3.

a bona fide occupational

•

The Policies constitution an unreasonable invasion of privacy in breach the

provisions of the Personal Information Protection Act, RSA 2003, c P-6.5

and/or constitute a tortious invasion of privacy.

[259] The Union seeks a declaration that the Policies are void or unenforceable, in whole or in

part.

[260] The Union submits that in determining the merits of this grievance concerning the

Employer's unilateral imposition of random testing under the Policies I am bound to apply the

Supreme Court of Canada's analysis in CEP Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 {"Irving

Pulp") analysis in Irving Pulp.

[261] The Union notes that, to the date of its submissions, Canadian arbitral jurisprudence,

collectively and individually, has failed to uphold random drug testing and has also failed to uphold

random alcohol testing with a testing threshold below 0.04 BAC, on the basis that is falls outside of

any legitimate Employer interest, including deterrence and the enforcement of safe practices.

[262] It also submits that Irving Pulp is not

a "standard of review case" and notes that two

important arbitration decisions have subsequently applied the framework set out in Irving Pulp and

in doing so quashed unilaterally imposed random drug and alcohol testing in Mechanical

53

Contractors Association Sarnia v. United Association of Journeymen and Apprentices of the

Plumbing and Pipefitting Industry of the United States and Canada, Local 663, supra, and in Unifor,

Local lOlA v. Suncor Energy Inc., Oil Sands (Random Testing Grievance), supra.

[263] The Union submits that although there was considerable expert evidence in this case,

expert evidence is not the core of the grievance, particularly since a positive urine test for

marijuana does not establish an increased accident risk. Specifically, the Union noted that the

expert evidence established that a positive urine test does not identify or establish any level of

impairment; does not signify an increased crash risk and in fact, even fails to identify

a user at one's

maximum level of impairment because the THC metabolite is not present in urine within the first

four to five hours after use.

[264] It also submits that no reliable evidence was presented which established that the adoption

of random testing will improve workplace safety.

[265] The Union submits that Dr. Macdonald's evidence should be preferred over that of the

Employer's experts

. In doing so it noted that neither Drs. Beckson nor Kadehjian conducted

independent study or research; nor did they publish any papers on the efficacy of drug testing upon

workplace safety or the impairing effects of THC or the duration of such effects. In contrast, Dr.

Macdonald's opinions on urine testing and crash risk have been published in peer-reviewed

scientific journals, suggesting enhanced reliability as a result.

[266] While the Union acknowledged Dr. Li's independent published research related to the

impact drug and alcohol use in airline crashes and motor vehicle crashes, it pointed out that Dr. Li

had not published a paper addressing the relationship between urine testing or a .02 BAC and crash

or accident risk. It further noted that Dr. Li's research has focused on recent drug and alcohol use,

demonstrated by blood or oral fluid tests.

[267] With respect to the impact of random testing upon bargaining union members, the Union

called six witnesses who testified about how random testing made them feel untrusted in the

workplace and that the testing protocols adopted by the Employer made them feel humiliated and

embarrassed. None of these bargaining unit witnesses came to work impaired by drugs or alcohol

or were aware of fellow employees doing so. Each witness testified that safety was important in

the workplace both on an individual basis and for others but felt that random testing did nothing to

add to this process.

[268] The Union submits that CRO's safety record as depicted in Employer records including the

evidence set out in Exhibit 43 [Safety Stats for CRO for Past 20 Years -1993- 2013] demonstrate not

only the absence of

a problem with employees being impaired by drugs or alcohol at work but also

the absence of risk,given the frequency of workplace injuries has reduced over the last 15 years.

[269] The Union noted that the testing statistics set out in Exhibits 45(a) and (b) included other

sites and did not differentiate between bargaining unit and other employees. The Union submits

that in order to justify the Policies, the Employer is restricted to CRO statistics of bargaining unit

employees.

54

[270] The Union submits that the drug and alcohol testing statistics fail to establish a problem in

the workplace. It also submits that if a positive drug test is associated with an increased risk of

workplace injury or accident, then one would equally expect to see

positive test results than for random positive test results

a higher-rate of post-incident

.

[271) The Union cautioned reliance on CRO's Drug and Alcohol Summary (2005

-2011) Exhibit

29 as it fails to specifically identify which of the positive test results relate to bargaining unit

members (as opposed to contractors, non-bargaining unit employees or visitors).

[272] The Union submits that the Employer's use of anecdotal evidence to establish

a drug or

alcohol problem at CRO is insufficient and unreliable; such as finding a bag of diet pills, finding

a

marijuana cigarette in 2003 or 2004, or, in 2004 one person smelling marijuana in

which could not be detected by another senior management employee.

a haul truck

[273] Some of the Employer's witnesses testified that the decision to introduce random testing

was not a response to CRO's site but rather

Employer sites.

a risk management measure to improve safety at all

[274] In the Union's view, the Employer has failed to reasonably justify the introduction of

random testing at CRO and as a result, the Policy Grievance must succeed.

Summary

[275] It is the Union's position that the Employer's unilateral imposition of a highly invasive

random testing policy upon members of CRO's bargaining unit is an unacceptable and unwarranted

incursion on employee privacy rights. It submits that random testing is neither a necessary or

proportionate response in a workplace without a demonstrated substance problem.

[276] For these reasons, the Union submits that the grievance must be allowed.

The Employer:

(277] The Employer states that it has the management right under the Collective Agreement to

implement safety measures,including those set out in the random testing policies.

[278] It submits that those who seek employment in safety sensitive industries must expect that

conduct in relation to drug and alcohol use will be of interest and scrutiny by the employer,

particularly in light of the potentially catastrophic consequences of accident and/or injuries in a

mine environment.

[279] Accordingly, the exercise of its management right to impose the random testing

intervention was described as a relatively costly safety intervention to simply enhance the safety of

employees. It reiterated that it is neither intended to be nor is it

upon proof of impairment.

a

mechanism to impose discipline

55

[280] In assessing the reasonableness of random testing, the Employer submits that I am bound to

assess both the evidence of its effectiveness in reducing accidents as well as the extent of the

invasion of privacy interests of employees.

[281] The Employer submits that within an inherently dangerous work environment, its adoption

of random testing as but one component of a larger safety program is a reasonable and realistic

non-disciplinary safety intervention in an effort to prevent workplace accidents and assist "risky

employees" through rehabilitation.

[282] It is the Employer's position that within this context safety interests constitute a critical first

priority to which individual privacy interests are necessarily subordinate in order to achieve and

maintain a safeand healthy work environment for all.

[283] The Employer's implementation of a random testing program in May 2012 was described as

its response to the history and the ongoing use of drug and alcohol use by employees and

contractors throughout its various work sites, including CRO, despite its adoption of the drug and

alcohol policies in 2000 [Exhibit 10]. It was also described as its response to concerns of the

potential for workplace accidents caused by risky drug and alcohol use by some employees.

[284] The Employer had concluded that other types of testing (particularly reasonable cause and

post-incident testing) did not sufficiently deter employees from using drugs and alcohol in a manner

which created a safety risk in the workplace. It expressed confidence in the opinions of its experts

that random testing deters at least some risky behaviour and identifies and assists others who fail

to discontinue risky behaviours in relation to drug and alcohol use.

[285] The Employer acknowledged that employees who test positive on a random test may or

may not be impaired at the time but, according to its experts, still pose a risk of being impaired at

work.

[286] It is the risk of impairment and not the detection of impairment that the Employer seeks to

reduce or eliminate through the deterrent effect of random testing to reduce or eliminate one of

the factors which can cause or contribute to workplace accidents.

[287] It also submits that the evidence of its experts is to be preferred over that of Dr. Macdonald

and establishes that random testing is a reasonable, reliable and effective measure to enhance

safety in

a safety sensitive workplace.

[288] Unlike other random testing policies, the Employer submits that its random testing program

does not result in discipline or discharge under the Alcohol, Illegal Drug and Medication Use policies

(the "Policies") [Exhibits 4, 5 and 6, Appendix C].

[289] The Employer states that since no punishment is imposed in response to

a positive random

test result, its Policies are distinguishable from those considered in previous random testing cases,

including the Supreme Court of Canada's ruling in the Irving Pulp case. It also submits that its

Policies do not violate human rights laws. It submits that in the absence of disciplinary

56

consequences arising from a positive test result, it is not necessary to first establish a drug and

alcohol problem in the workplace as a precondition to the implementation of random testing.

[290] The Employer acknowledged the existence of employee privacy interests in relation to their

own bodies and submitted that its random testing protocols protect those privacy interests as much

as possible in the circumstances. At the same time it was suggested that employee privacy interests

do not extend to risky drug or alcohol use which could pose a safety risk in the workplace.

[291] In describing its random testing protocols, the Employer submits that it has adopted a

respectful best practices approach of minimal intrusion into employee privacy interests while taking

active steps to minimize risky drug and alcohol use which it believes may pose a threat to workplace

safety.

[292] In an effort to reasonably respond to employee privacy concerns, the Employer initiated

measures to limit disclosure of the identity of those selected for testing by a third-party contractor;

of on-site non-negative test results; of laboratory/Medical Review Officer confirmation test results;

and of the results of the assessment and treatment recommendations, to those on

basis.

a need-to-know

[293] It is the Employer's position that the reduction of the safety risk of impairment from drugs

or alcohol in the workplace that justifies the negative impact upon the privacy interests of

employees. In short, the balancing of interests favour the safety benefits of random testing.

[294] The Employer submitted that the number of fatalities (44 over 25 years, Exhibit 40)

throughout its mining operations is a telling illustration of the dangers associated with open pit

mining.

[295] It also pointed to the evidence of fatalities, injuries and "near misses" presented to the

Board throughout the arbitration hearing [Exhibits 27, 34, 38, Glenn Ross, Ross Wilson, Robin

Sheremeta] at CRO and at other Employer coal mines, further illustrating the safety sensitive nature

of the work performed by all members of bargaining unit; whether in the pit, the Maintenance Shop

or the processing plant.

[296] While the Employer conceded that it has a "very good safety record", its stated goal is zero

accidents or injuries in its coal mining operations. To achieve that goal, it operates an "integrated

safety program" which includes such things as training in mine safety and accident prevention;

training and education in all human factors which can affect workplace safety (nutrition, fatigue,

stressmanagement, wellness); medical monitoring; and safety orientations about mine operations,

everything from equipment use and the random testing Policies.

[297] The Employer submits that since drug and alcohol use/misuse continued to be

a problem

throughout its mining operations despite the adoption of reasonable cause, post-incident and pre•

employment drug and alcohol testing, it was necessary and reasonable to adopt the random testing

program.

57

[298] It noted that 6 of about 50 positive post-incident drug tests between 2005- 2011 in Alberta

and in British Columbia occurred at CRO. There was

at CRO.

1reasonable cause positive drug test in 2012

[299] With the implementation of random testing in 2012, amongst employees, there were 2

positive drug tests at CRO [Exhibit 45]. There were also 3 employees at CRO who refused to test in

2012.

[300] In 2013 there were 71positive random drug tests and 21refusals at various Employer sites

in Alberta and British Columbia, of which 37 were employees. At CRO there were 12 positive

employee drug and 2 positive employee alcohol tests and 3 refusals. [Exhibit 45B]

[301] The Employer states that "several" of those who tested positive at CRO under random or

reasonable cause testing over the past 2 years were determined to have a drug or alcohol addiction

and referred for mandatory treatment. Those found to be without a dependency were provided

with education and counselling and all of whom were thereafter subject to monitoring agreements

to abstain from risky drug or alcohol use in order to return-to-work. Positive tests thereafter result

in discharge with an opportunity for re-employment.

[302] It noted the evidence of incidents over the last 10 years in which drugs or drug

paraphernalia was found on the CRO site or in which the smell of marijuana was detected even

though ownership was not established.

[303] The Employer submits that the evidence demonstrates the efficacy of the random testing

program.

[304] It identifies, removes and assists those with substance abuse problems. It identifies,

removes and assists those use drugs or alcohol in

a manner which creates a safety risk.

[305] It deters at least some from continued risky drug and alcohol use.

[306] The Employer's experts established that:

•

anyone testing positive represent an increased safety risk even if not

impaired when taking the test;

drug or alcohol use is a significant contributor to accidents and injuries in

society and in workplaces;

random testing has a significant deterrent effect and thereby reduces the

risk of accidents or injuries caused or contributed by impairment from drugs

or alcohol;

•

random testing is a beneficial risk reduction strategy and safety intervention

at CRO.

[307] The Employer states that the evidence of its experts should be preferred over that of Dr.

Macdonald in light of his absence of medical, pharmacology toxicology, substance abuse and risk

management training.

58

[308] The Employer submits that Dr. Macdonald admitted to

a bias against random testing and

restricted his literature review to studies which supported his opinions. He misconstrued the goal

and purpose of random testing as well as the operation of the Employer's policies; particularly his

suggestion that there were disciplinary consequences imposed in the event of a positive test.

[309] The Employer states that the Supreme Court decision in Irving Pulp is of little or no

application to this grievance as it is merely a "standard of review" case applied to an arbitration

award in which it determined that the "reasonableness" standard and not the "correctness"

standard was to be applied to all aspects of the arbitrator's decision.

Summary

[310] It is the Employer's position that safety interests outweigh privacy interests in

a safety

sensitive work environment and,accordingly, the implementation of random testing is a reasonable

and effective exercise of management rights.

[311] It further submits that even if it were necessary to first establish a drug and alcohol problem

at CRO in order to justify random testing, sufficient evidence of just such

during the course of the hearing.

a problem was presented

[312] In either event, the Employer submits that the grievance should be dismissed

.

VII.

THE DECISION

[313] In determining the merits of the policy grievance before the Board, it is necessary to assess

the evidence within the context of applicable legal principles, having regard to developed arbitral

consensus as set out in relevant, leading and binding authorities.

[314] At the outset, the Employer submits that the Supreme Court of Canada's decision in Irving

Pulp has little or no application to this policy grievance as it is but a standard of review case. While

admittedly there have been some decisions which have adopted such a view,

that Irving Pulp either has or was intended to have so limited an application. In my view, the

majority of the Court (the "Court") itself suggested otherwise in reiterating (and not determining

at para. 6, that the applicable standard of review of labour arbitrator's decision has been one of

reasonableness since its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]

I am not persuaded

),

a

1S.C.R. 190.

[315] While clearly a standard of reasonableness was applied to the Court's review of the labour

arbitrator's decision in Irving Pulp; the decision in issue was the unilateral imposition of a random

alcohol testing program within the framework of a collective bargaining regime. The Court

approved the framework for analysis applied by the arbitrator to this particular workplace rule,

which included both recognition and a balancing of the workplace safety and privacy interests

impacted by random testing; workplace interests assessed by the Court at the outset as both highly

sensitive and significant.

59

[316] The workplace rule in issue in Irving Pulp was the unilateral introduction of

a mandatory

random alcohol program, which the arbitrator found exceeded the scope of the employee's

management rights clause under the collective agreement. The workplace rule in issue in this

grievance is also the unilateral imposition of a random testing program. In my opinion, on its face,

not only am I guided by the Court's decision in Irving Pulp, I am bound by it.

[317] In reaching this conclusion

I have considered a number of arbitration decisions which have

applied the principles approved and applied in Irving Pulp in assessing the reasonableness of a

workplace rule through a balancing of interests and proportionality approach to the imposition of

safety measures and attendant intrusions on privacy rights. [Mechanical Contractors Association

Sarnia v United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of

the United States and Canada, Local 663, (Mechanical Contractors) (2013 Canlll 54951 {ON LA)

{Surdykowski); Unifor, Local lOlA v. Suncor Energy Inc., Oil Sands, (Random Alcohol and Drug

Testing Policy Grievance}, (March 25, 2014) (Hodges); Health Employers Assn. of British Columbia v.

Health Sciences Assn. (Influenza Control Program Policy Grievance), 237 L.A.C. {4th) 1, [2013]

B.C.C.A.A.A. No. 138; and Bombardier Transportation v Teamsters Canada Rail Conference, Division

660, CROA&DR Case No

Union, Local 2531, and KVP Co. ("KVP"}{1965}, 16 L.A.C.l3 (Robinson)], Agrium Vanscoy Potash

Operations and USW, Local 1552, {16-10}, Re, 2015 Carswell Sask 1 249 LAC 4th)185 (Norman)]

. 4277, 2014 Canlll 5318 {CA LA)(Schmidt).,Re Lumber & Sawmill Workers'

(

[318] However, the Employer also submits that under its mandatory random testing program the

absence of punitive consequences (discharge or discipline) in response to positive test or a refusal

to test distinguishes it from the random alcohol testing program struck down in Irving Pulp as well

as those in other random testing cases considered to date. In contrast, the consequences of

a

positive test or refusal under its random testing policies are rehabilitative, imposed upon those

whose conduct has been identified as a safety risk; unlike other cases in which disciplinary

consequences were imposed in response to employee possession, use or impairment in the

workplace.

[319] Accordingly, the Employer submits I ought not to follow Irving Pulp on the basis that it is the

disciplinary context which dictates the Irving Pulp analysis and the justification required for the

random testing policies; neither of which in the Employer's view, apply in this case.

[320] A more thorough review of the Employer's testing policies and protocols is required in order

to evaluate the nature of the consequences arising thereunder.

[321] The Employer's random testing policies are identified as Exhibits 4, 5 and 6, and attached

hereto at Appendix C. While the substance in issue is distinguished amongst the policies, its

common stated principles are these:

•

Teck Coal has an obligation and responsibility to provide a safe workplace.

•

The use of alcohol, illegal drugs, whether casual, recreational or arising from a

dependency or the use of prescription medication and over-the-counter

medications can create unacceptable safety risks to everyone on a safety•

sensitive work site.

60

•

Given the carry-over effects of alcohol and illegal drugs, these risks occur

regardless of whether the alcohol or illegal drugs are used while at work or when

employees are off work.

•

Teck Coal considers it imperative to take the steps set out in this Policy to reduce

safety risks arisingfrom the use of alcohol, illegal drugs or medications.

These steps are intended to assist employees to stop using alcohol or illegal drugs

and to avoid using medications in breach of this Policy, by providing for treatment

and counselling and by making it clear that if they don't stop using alcohol or

illegal drugs on or off the job and have an incident or near-hit with alcohol, illegal

drugs or medications in their system, their employment will be terminated.

The presence of illegal drugs and medications in an employee or other persons

system will be determined by the provision of a urine sample and urinalysis or by

some other means. The presence of alcohol will be determined by observation

smell or by use of an alcohol testing device, such as a breathalyzer, or the

provision of a urine sample and urinalysis, or by other means. A blood alcohol

•

concentration above 00.02 while at work is considered a safety risk and

a

"positive" test and is prohibited by this Policy, whether or not such concentration

would be considered impairment for other purposes.

[322] In May 2012

multi-faceted safety program. It was described as a risk management tool, imposed to deter the

misuse of alcohol and medication and the use of illegal drugs in risky manner within safety

sensitive work environment and to identify employees who are deemed to be safety risk on the

, the random testing was introduced as one more component of the Employer's

a

basis of

a

positive alcohol test or a non-negative and positive drug test result.

[323]

I

accept that the Employer's assertion that its random testing program is not concerned

with identifying, assessing or establishing employee impairment in the workplace. Rather, its focus

is on elimination of any risk of impairment in a dangerous work environment.

[324] In reviewing the random testing policies and protocols, it is unclear whether a random

alcohol test result is considered "positive" at a BAC level over 0.02 as set out in the alcohol policy or

at or over a BAC level of 0.02, as described by Denise Thomson, the Employer's occupational health

nurse, during the course of her testimony concerning positive test protocols. Although perhaps not

much will turn on this issue in order to resolve the ambiguity, I accept that the detection of alcohol

at a BAC of 0 .02 or more in an on-site breathalyzer test constitutes

a positive test result.

[325] Employees with a positive alcohol test result are sent home with pay, pending the outcome

of an Assessment by an addictions specialist. A refusal to submit to an Assessment results in

termination of employment.

[326] Those who attend the Assessment and who are determined to suffer from alcohol abuse,

addiction or a dependency problem are then required to undergo and successfully complete any

prescribed or recommended treatment in order to permit a return-to-work. During treatment,

provided at the Employer's expense, employees are eligible for the STD benefits of $700.00 per

work in accordance with the provisions of the collective agreement. Once treatment has been

61

successfully completed, employees are permitted to return-to-work under the terms of

a

Monitoring Agreement which generally extends for a 24 month period. Employees under a

Monitoring Agreement are subject to unannounced alcohol and drug testing in addition to random,

post-incident and reasonable cause testing. A refusal to return to work under a Monitoring

agreement or a breach of the Monitoring Agreement results in termination of employment.

[327) Those identified by the addictions specialist to be without an alcohol abuse, addiction or

dependency problem are eligible for an immediate return-to-work upon agreeing to the altered

terms and conditions of employment, also set out in

a Monitoring Agreement. Those terms include

a

requirement that the employee undergo unannounced and random testing in addition to "for

cause" testing for a 24-month period. As in the case of those prescribed treatment for an alcohol

addiction or dependency, employees who refuse to return-to-work under a Monitoring agreement

or who breach a provision during its term are terminated from employment.

[328] It is the detection of the presence of an illegal drug or medication in an on-site urine test

which constitutes

a non-negative result, triggering laboratory confirmation protocols.

[329]

Initially, all employees with a non-negative random drug test result were sent home with

pay pending laboratory confirmation testing results. This protocol was later adjusted in cases of

,

a

non-negative result for opiates and later for amphetamines, in response to the number of lab

confirmation tests which identified use of prescribed or over the counter medication. Under the

amended protocol, those employees who declare that they are taking medication as prescribed are

permitted to resume work, pending laboratory confirmation. When the employee's explanation is

confirmed by the MRO, the employee simply continues working without conditions. When the

employee's explanation is contradicted by the MRO, the employee is sent home under positive test

protocols.

[330] In respect of all other non-negative test results, employees remained at home pending the

outcome of laboratory confirmation testing

.

[331] As in the case of those who test positive for alcohol, employees with a confirmed positive

drug test result are required to undergo an Assessment. Those identified with substance abuse,

a

dependency or addiction problem are required to complete any treatment recommended or

prescribed, during which weekly STD benefits are payable. Again, upon completion of treatment,

employees are permitted to return-to-work under the terms of

of which results in the termination of employment.

a Monitoring Agreement, a breach

[332] Those assessed without a dependency or addiction (being the casual or recreational user)

for whom no treatment has been recommended or prescribed, are permitted to return-to-work

under altered conditions of employment as set out in a Monitoring Agreement, but not otherwise.

A refusal to agree to its terms or in the event of a breach of one or more of its terms results in

termination of employment.

[333] Employees who refuse to undertake a site alcohol or drug test are removed from the

workplace. According to Mr. Barrie, they are placed on unpaid leave, unlike those under positive

test protocols, and referred for an assessment. If prescribed, once treatment is completed

62

employees are eligible to return-to-work under the terms of a monitoring agreement. As in the

case of all others who refuse to undergo an assessment, employment is terminated.

[334] During the course of the hearing, the Board was informed that employees whose

employment has been terminated for testing positive while under a Monitoring Agreement are

conditionally eligible for rehire. Mr. Barrie was unable to recall anyone outside of the grievance

process who successfully secured re-employment in suchcircumstances.

A Punitive or Disciplinary Consequence

[335] It has long been accepted that the imposition of a safety measure outside of the collective

bargaining process which incorporates disciplinary consequences for those subject to its terms must

fit within the reservation of management rights in

a collective agreement; a principle affirmed by

the Court in Irving Pulp at para.4,expressed as follows:

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. [emphasis added]

And at para. 23

:

...an employer may only discharge or discipline an employee for just cause' or

'reasonable cause'- a central protection for employees. As result, rules enacted

a

by an employer as a vehicle for discipline must meet the requirement of

reasonable cause.[citations listed intentionally omitted].

[336] In identifying the attributes of

a disciplinary sanction, Brown & Beatty provided a helpful

overview in Donald J. M. Brown & David M. Beatty, Canadian Labour Arbitration, 4th ed. (Aurora,

Ont.: Canada Law Book,2006) (loose-leaf updated 2014, release 39) ch 7 at 7:4210

In some cases, employers deny that the action they took was disciplinary, in lieu

of defending the appropriateness of the penalty imposed.

*******

A disciplinary sanction must at least have the potential to prejudicially affect an

employee's situation_ although immediate economic loss is not required.

[337] Discipline, in its ordinary meaning, has been defined as:

•

Control or order exercised over people or animals, e.g. over members of an

organization; system of rules for this. [The Pocket Oxford Dictionary, gth Ed.,

p.245]

63

•

Instruction, comprehending the communication of knowledge and training to

observe and act in accordance with rules and orders. Correction,

chastisement, punishment, penalty. Rules and regulations. [Black's Law

Dictionary, 5th Ed.,p. 417]

To punish or penalize for the sake of discipline. [Webster's New Collegiate

Dictionary, page 322]

•

Bring under control, train to obedience and order, drill; punish; chastise. [The

Concise Oxford Dictionary of Current English, ih Ed,p. 273].

[338] Clearly discipline contemplates

a range of employer responses to a breach of workplace

rules, policies and protocols; responses which can include termination for cause or other adverse

employment consequences short of termination of employment.

[339] For the purpose of this assessment of the nature of the consequences under the Employer's

random testing policies, although I recognize that human rights issues relating to accommodation of

a

disability can and do arise in drug and alcohol testing cases, I have concluded that it is

unnecessary to extend the analysis to such ancillary considerations in order to determine this issue.

[340] In many cases the disciplinary response to

a refusal or a positive random test is significant,

often dismissal. [See: Irving Pulp and Paper, Ltd. v Communications, Energy and Paperworkers

Union, Local 30 {Day Grievance), [2009] N.B.L.A.A. No. 28; Imperial Oil Ltd. v. Communications,

Energy and Paperworkers Union of Canada, Local 900 (Policy Grievance), [2006] O.L.A.A. No. 721,

157 L.A.C. (4th) 225 (Picher) "Nanticoke", Communications, Energy and Paperworkers Union, Local

777 v Imperial Oil Ltd., (May 27, 2000) (Chair: Timothy J. Christian); Greater Toronto Airports

Authority v. Public Service Alliance of Canada, Local 0004, [2007] C.L.A.D. No. 243, 90 C.L.A.S. 177,.

Mechanical Contractors Association Sarnia v. United Association of Journeymen and Apprentices of

the Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2013 Can· Lll 54951

(ON LA) (Surdykowski).]

[341] Discipline or disciplinary action is not defined under the collective agreement at issue in this

case. Article 21.02 refers only to disciplinary procedures.

[342] It is clear that the Employer's random testing policies do not mandate immediate

termination or appear to apply immediate negative financial consequences in the event of either

a

non-negative or positive drug test or a positive alcohol test. In each case, affected employees are

removed from the workplace and placed on leave pending a referral to an addictions specialist. The

referral for an Assessment may be delayed for those subject to laboratory confirmation testing.

These policy provisions are consistent with the express rehabilitative purpose set out in the random

testing program.

[343] An assessment of whether or not disciplinary consequences arise in the application of the

Employer's random testing policy, in my opinion, includes those measures imposed in, during and

after the testing process which result in adversely altered employment terms and conditions of

employment in a sufficient degree as to constitute discipline.

64

[344] Having carefully reviewed the various components of the Employer's random testing

program, am persuaded that there are disciplinary consequences, in varying degrees of severity,

I

attached to other of its mandatory provisions; consequences which arise in the following

circumstances:

•

A refusal to attend a mandatory referral to an addictions specialist for an

Assessment results in immediate termination of employment.

Although it has long been accepted that those diagnosed with substance

abuse problems are properly subject to the terms of a Monitoring Agreement

in order to be permitted to return-to-work. However, under CRO's

mandatory testing protocols, even those who participate in an Assessment

and who are determined to be without symptoms of drug or alcohol abuse,

dependency or addiction and for whom no treatment was been prescribed or

recommended, are not permitted to return-to-work under existing terms and

condition of employment. Rather, such employees are subject to the terms

of a Monitoring Agreement which includes unannounced testing in addition

to random, post-incident and reasonable cause testing and provides for

immediate termination of employment in the event of

a subsequent positive

test on the basis of deemed safety risk. Thus, employees who do not

a

require rehabilitation or other assistance are nonetheless subject to altered

adverse terms and conditions of employment.

•

Those without a substance abuse problem, addiction or dependency who

refuse to participate in

employment.

a Monitoring Agreement are terminated from

The Employer practice in the event of a refusal to submit to

results in the employee's removal from the workplace on an unpaid basis

contrary to the express provisions of the policies asdescribed by Mike Barri

a random test

e

.

Accordingly the positive test protocol contemplated under the random

testing policy is not honoured; constituting, in my view, an unauthorized

negative financial and a disciplinary consequence.

[345] In addition, having regard to the broader context of the Employer's random testing

protocols, I note that attendant upon a CRO employee's participation in the Assessment process

conducted by an addictions specialist selected by the Employer,is a mandatory requirement that on

pain of termination of employment, an employee reveal to a stranger highly sensitive personal

information the nature of which Sopinka, J. referred to in

R v. Plant [1993] 3 S.C.R. 281at 293], "...

tends to reveal intimate details of the lifestyle and personal choices of the individual." Again, in my

view, the Assessment incorporates a disciplinary component into the assessment process.

[346] Having regard to all of these factors and notwithstanding that neither a positive random

test nor a refusal to test triggers immediate dismissal,

I am persuaded that the Employer's random

testing program incorporates and applies a number of disciplinary consequences to those subject to

its terms. As such, I am also persuaded that the framework for analysis set out in Irving Pulp is

applicable to this grievance.

65

Unilateral Introduction of Random Testing: The Irving Pulp Paradigm

[347] The Court in Irving Pulp had occasion to consider the interpretation of

a management rights

clause of

a

collective agreement within the context of an employer's unilateral introduction of

a

mandatory random alcohol testing program/policy.

This random testing policy provided for

disciplinary consequences in the event of a positive test at a BAC cutoff of 0.04% or in the event of a

refusal.

[348] In undertaking this analysis, the Court identified and approved the legal framework to be

incorporated into

a consideration of an employer's exercise of management rights which results in

the introduction of a workplace place rule with disciplinary consequences. In assessing the scopeof

that authority, the Court approved the considerations set out in the "KVP test": the rule must be

reasonable;the rule must satisfy a reasonable cause constraint where discharge or discipline can be

imposed for its violation; and the rule must be consistent with the collective agreement. It also

noted with approval, at para. 27, the "balancing of interests" approach to an assessment of "KVP

reasonableness" of a unilaterally imposed safety rule or policies that affect employee privacy within

a random testing context.

[349] Abella J. discussed this "balancing of interests proportionality approach" within a random

testing context and outlined, with approval, those necessary steps to the analysis at paras 4-6:

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 the employee's privacy rights. The dangerousness of the

workplace is clearly relevant, but this does not shut down the inquiry, it begins

the proportionality exercise.

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.

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. [emphasis added]

[350] The Irving Pulp arbitration board's decision in striking down the company's random alcohol

testing policy was held to be reasonable by the majority of the Court and was thus upheld. In

determining that the policy was unjustified, the board relied in part upon the evidence of low

66

positive test percentages plus an absence of evidence to establish "...any significant degree of

incremental safety risk attributable to employee alcohol use" in the workplace [para.120].

[351] An important component of the board's analysis was its consideration of the nature of

random testing regime in the particular workplace, having regarding to the competing interests at

stake, quoted by the Court, [with the Court's emphasis noted], at para. 14,as follows:

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.

[352] In establishing justification for the intrusion on privacy interests generated by random

testing, the Court also accepted that the employer must do so on the basis of the "... particular risks

in a particular workplace".

[353] The Court noted with approval Arbitrator Picher's helpful summary of those circumstances

in which drug and alcohol testing in safety sensitive workplace is generally accepted within the

a

"Canadian Model", which he discussed in Nanticoke, supra, at paras. 100- 101:

At the risk of oversimplification, the 'Canadian Model' for alcohol or drug testing in a

safety sensitive workplace as developed in the arbitral jurisprudence generally contains

a number of elements as summarized below:

•

No employee can be subjected to random, unannounced alcohol or drug

testing, save as part of an agreed rehabilitative program.

An employer may require alcohol or drug testing of an individual where the

facts give the employer reasonable cause to do so.

It is within the prerogatives of management's rights under a collective

agreement to also require alcohol or drug testing following a significant

incident, accident or near miss, where it may be important to identify the root

cause of what occurred.

•

Drug and alcohol testing is a legitimate part of continuing contracts of

employment for individuals found to have a problem of alcohol or drug use.

67

As part of an employee's program of rehabilitation, such agreements or

policies requiring such agreements may properly involve random,

unannounced alcohol or drug testing.

This is the only exceptional

circumstance in which the otherwise protected employee interest in privacy

and dignity of the person must yield to the interests of safety and

rehabilitation, to allow for random and unannounced alcohol or drug testing.

The cases general recognize that an employee's refusal or failure to undergo

an alcohol or drug test in the three circumstances described above may

•

properly be viewed as a serious violation of the employer's drug and alcohol

policy, and may itself be grounds for serious discipline. The failure or refusal

to take an alcohol or drug test, however, like the registering of a positive test,

does not necessarily justify automatic termination.

The appropriate

disciplinary sanction in such a case remains subject to the general just cause

provisions of the collective agreement and is an issue to be determined on a

case by case basis, having regard to all of the relevant facts.

As set out above, a key feature of the jurisprudence in the area of alcohol or drug

testing in Canada is that arbitrators have overwhelmingly rejected mandatory, random

and unannounced drug testing for all employees in a safety sensitive workplace as being

an implied right of management under the terms of a collective agreement. Arbitrators

have concluded that to subject employees to an alcohol or drug test when there is no

reasonable cause to do so, or in the absence of an accident or near miss and outside of

the context of a rehabilitation plan for an employee with an acknowledged problem is

an unjustified affront to the dignity and privacy of employees which falls beyond the

balancing of any legitimate employer interest, including deterrence and the

enforcement of safe practices. In a unionized workplace, such an extraordinary

incursion into the rights of employees must be expressly and clearly negotiated. It is not

to be inferred solely from general language describing management rights or from

language in a collective agreement which enshrines safety and safe practices.

[354] Arbitrator Picher also pointed out that neither the federal nor provincial governments have

enacted statutory or regulatory authority to authorize employers to conduct drug or alcohol testing,

unlike in other jurisdictions. This is still the case in Canada.

[355] On the issue of the deterrence factor in random testing, the Court in Irving Pulp agreed with

the arbitration board that an expert's testimony which speaks to random testing's main theoretical

goal of deterrence is not persuasive in the absence of accompanying information about this specific

workplace.

[356] Accordingly, in conducting an assessment of whether there was reasonable cause for the

Employer's unilateral introducing universal mandatory random testing in May 2012, the framework

of analysis contemplates the following steps:

•

an assessment of the nature of the work environment;

•

an assessment of evidence of enhanced safety risks in that work

environment, such as evidence of a workplace problem with drugs and

68

alcohol, whether determined through the application of statistical data of

use, accident or injury rates or measured through the application of risk•

avoidance strategies;and,

•

an assessment of the reasonableness of the measure imposed in response to

the problem, including its proportionality in the context of the conflicting

workplace interests.

CRO's Work Environment

[357] The nature of CRO's work environment is not in dispute. Bargaining employees occupy

safety sensitive positions in a safety sensitive industry and within

a work environment that has

inherent dangers. The repetitive nature of the work performed in changing environmental

conditions during long shifts is acknowledged by the parties. The scope of the operation, the size of

the equipment, the isolation within in some of the work is performed, the nature of the duties and

the conditions in which the duties must be performed are all important components of CRO's work

environment. Thus the first step in the analysis is readily established; CRO constitutes a safety

sensitive workplace.

Evidence of a Workplace Problem with Alcohol and Drugs at CRO

[358] The Employer reiterated throughout the course of the hearing that its decision to introduce

random alcohol and drug testing at CRO was a reflection of its earlier adoption of a risk

management approach to workplace safety, described at some length by Robin Sheremeta. It did

so in part in response to the nature of its work environment as well as having regard to its statutory

obligation under the Alberta Occupational Health & Safety Code to create and maintain

a safe and

healthy work environment.

[359] Random testing was aimed at reducing and/or eliminating risk associated with the risky use

of drugs or alcohol, whether at home, at work, recreationally, casually, or as result of abuse,

a

dependency or addiction. The Employer asserts that to the extent its safety measures may or do

intrude upon individual privacy rights at CRO, safety interests necessarilytrump privacy interests in

the context of

a dangerous work environment.

[360] While I accept the Employer's stated risk reduction goal in implementing random testing,

the goal itself does not satisfy the risk threshold necessary to justify the introduction of random

testing under the Irving Pulp paradigm approved by the sec. Rather, there must first be sufficient

evidence of an alcohol and drug problem at CRO to justify its introduction in May 2012.

[361] A workplace rule to enhance safety serves a broad and significant interest. Witnesses

without exception, regardless of seniority, age, employment status or role at CRO, reiterated

personal support for and adherence to safe work practices in the workplace. This shared

commitment to

a safe workplace is also evident in the evolution of drug and alcohol testing

initiatives at CRO which, prior to 2012, represented either a joint initiative of the Employer and the

Union or one introduced with Union support [See paras. 35-41above].

69

[362] CRO's Drug & Alcohol Summary of the aggregate test results of employees, contractors and

visitors 2005 February 4, 2014 is set out in Exhibit 29. These results include those obtained

through the Employer's random testing program which is the subject of this grievance.

-

[363] For the purpose of establishing evidence of

a drug and alcohol problem prior to the

introduction of random testing, the combined test results recorded in Exhibit 29 during the 7 year

period (2005-2012) demonstrate that of the 232 reasonable cause and post-incident tests, CRO

employee test results are:

Site alcohol positive tests:

Reasonable cause:

Post-incident:

0

3 confirmed positive

7 confirmed positive (including

1positive for Tylenol)

[364] These positive test results do not indicate where or when a substance was ingested or

identify sample's concentration level. Accordingly there is no evidence either establishing or

a

eliminating any degree of impairment associated in any the positive drug test results identified

above.

[365] Company-wide aggregate drug and alcohol test results and site-specific drug and alcohol

test results for 2012 and 2013 are set in Exhibits 45(a) and (b) [Appendix D). It is only the CRO drug

and alcohol test results which have relevance to a determination of the outcome of this grievance.

[366] In 2012, 4 HPis were documented. During this period 44 post-incident drug tests were

conducted, none of were confirmed positive in laboratory testing. There were no post-incident

positive site alcohol tests. Of the reasonable cause tests conducted in 2012, none related to

alcohol. Of the 4 reasonable cause drug tests conducted,

1 was confirmed positive. This data

persuasively establishes that neither drugs nor alcohol factored into any of the HPis in 2012.

[Exhibit 45(a)]

[367] In 2013, there were 24 post-incident tests, none of which were confirmed positive. No

reasonable cause tests were ordered. The 2013 data also establishes that neither drugs nor alcohol

factored into any of the 7 HPis at CRO. [Exhibit 45(b)]

[368] In summary, only

1of the 72 reasonable cause and positive incident drug or alcohol tests

conducted in 2012 and 2013 was confirmed positive.

[369] Additional evidence about drugs and alcohol at CRO was introduced through Employer

witnesses, some of which includes:

•

October 2ih,1999: During the final hour of a night shift, a collision occurred

during which one haul truck rear-ended another, resulting in a fatality; an

accident which Glen Ross described as "chilling" and "sobering"; representing

what he described as one of the saddest days of his life.

Toxicology

investigations following the accident identified "very recent substance use by

the deceased". [Exhibit 34- 13.4]. As a result of this incident, the Union and

70

the Employer jointly created a formal Alcohol and Drug Policy in October

2000 [Exhibit 35].

•

A baggie of what was determined to be methamphetamine (crystal meth)

was discovered on the floor of the meeting room at Cheviot Dry. Ownership

was suspected but never confirmed.

The Employer responded with a

workplace presentation on crystal meth to all employees. [Exhibit 28]

October 2004: the smell of marijuana in a haul truck was reported but not

confirmed. An employee later reported seeing someone "toking up". It is

unknown if the individual described was a member of the bargaining unit.

(Glen Ross]

Sometime in 2008 (estimate), an operator reporting finding what was

believed to be marijuana in a haul truck at the beginning of

a day shift. Two

people who had operated the truck during the prior two shifts were

identified; one of whom was required to take a drug test (negative). The

second operator could not be located. Ownership of the substance was

never established.

•

Date unknown: a Ziploc bag of 'blue pills" was found on a dash, which may

have been diet pills. Ownership of the substance was not determined. This

incident caused the Employer to focus on worker fatigue [Ross Wilson].

A chronically late or absent employee who declined assistance several times

under the Employer's Employee Family Assistance Program was terminated

from employment [date unstated]. It was suspected that the employee may

have an alcohol dependency or addiction, which was not confirmed. [Robyn

West]

[370] A number of arbitral decisions have had occasion to consider the nature and sufficiency of

evidence of a substance problem among members of the bargaining unit as part of an assessment

of the justification of the imposition of random testing. For example, in Irving Pulp, supra, the

board considered the sufficiency of evidence which included 8 documented alcohol-related

incidents over a 15 year period, representing an average of

1incident every 3 years. Five of those

incidents represented employees who were determined to be "under the influence" in the

workplace. The board concluded, at para 109:

This evidence is not to be dismissed, and I do not do so, but it cannot be said to be

indicative of a significant problem with alcohol-related impaired performance at

the plant. As well, such as it is, it is not tied in with what the actual experience

has been in the plant, with accident, injury and near-miss history, and with what

group or groups of employees. I therefore have no idea of what the elements of

any such record are; still less whether any lapses have been causally linked to the

abuse of alcohol.

[371] The board concluded that the employer's evidence did not meet the necessary risk

threshold and struck the policy, a decision later upheld by the Court. In reaching this conclusion

board considered the following additional factors:

,

the

71

•

Dated general evidence on on-site alcohol abuse was not persuasive [para

108];

In an almost 10 year period (to the date of the hearing}, there had been 2

incidents in which an employee was "under the influence" at work;

As only 10% of those in safety sensitive positions were subject to random

testing per year, a percentage which the employer estimated would achieve

deterrence, suggest it did not regard alcohol as a significant risk in the

workplace;

•

Since the implementation of the random testing policy, there had been no

positive random tests and no positive reasonable cause tests within a 22

month period.

[372] In Imperial Oil Ltd. V. Communications, Energy and Paperworkers Union of Canada, Local

900 (Policy Grievance), [2006] O.L.A.A. No. 721, 157 L.A.C. {4th} 225 (Picher} "Nanticoke", the board

considered the introduction of a mandatory random drug testing program which was represented,

at para. 58, as one "...intended to create a safe work environment by the reduction of any risks of

accidents or incidents which could be contributed to by drugs and alcohol, and to deter the use of

suchsubstances where their use might negatively affect work performance and safety''. The testing

protocol provided for the use of oral swabs to detect actual impairment through cannabis use and

urine testing to detect the presence of drugs or their metabolites. Those in safety sensitive

positions were subject to random testing using buccal swabs. The policy was struck by the board as

the evidence did not establish "reasonable cause" for its introduction. In doing so, the board

assessed the evidence introduced to support random testing, noting at para. 88:

In

a period spanning more than fifteen years there has never been a case of an

employee being found to be impaired by drugs at work. Indeed, there was only

one instance of a positive urinalysis test, said to have occurred prior to the

certification of the Union in 1995, a case which because it involved a urinalysis

test, could not confirm impairment while at work, although it did indicate that the

employee in question had used marijuana at some point in his persona/life. Since

then, through thousands of drug tests, there has not been a single positive result,

whether through urinalysis or through the current use of the buccal swab. While

the evidence before us supports the conclusion that there has been some increase

in the frequency of use of cannabis generally in Canadian society over the last two

decades, there is no evidence whatsoever of any significant degree of cannabis

use among the workforce at the Nanticoke refinery. Indeed, the evidence tends

to the contrary, revealing

a picture of a mature and safety conscious workforce

with almost no record of drug use or abuse.

[373] In Mechanical Contractors, supra, the introduction of universal mandatory pre-access

alcohol and drug testing was assessed, albeit on the basis of "will say" statements. The board

concluded, at para. 196, that the evidence was insufficient (or non-existent} to demonstrate a

substance abuse problem " ....which demonstrably justifies the need for personally invasive pre•

access alcohol and drug testing".

72

[374] In Unifor, Local lOlA v. Suncor Energy Inc., Oil Sands, (Random Alcohol and Drug Testing

Policy Grievance), (March 25, 2014) (Hodges), the board also considered evidence to justify the

unilateral introduction of mandatory random alcohol and drug testing for all those in safety

sensitive positions. In this case evidence of fourteen positive alcohol tests over a nine year period

among a significant workforce population was also determined to be insufficient to meet the risk

threshold mandated by the Court in Irving Pulp.

[375] In contrast, the evidence of

a workplace alcohol problem in Greater Toronto Airports

Authority v. Public Service Alliance of Canada, Local 0004, [2007] C.L.A.D. No. 243, 90 C.L.A.S. 177,

("GTAA") included not only test results and evidence of use of alcohol in the workplace and

evidence of its recent use

which is found at paras. 256-259

,

as in immediately prior to attendance at the workplace, a sampling of

including:

,

•

evidence of members of the bargaining unit consumed alcohol at work or

during meal breaks;

•

evidence of employees who appeared to be inebriated;

evidence that it was common to smell alcohol on the breath of some

employees;

•

evidence of empty beer or alcohol bottles in vehicles or in the garage

evidence of employees who kept alcohol in their lockers, lunch pails and

coveralls;

•

evidence of employees who took beer into snow-clearing equipment;

evidence that employees assigned to the dafter shift often spent afternoons

in bars near the airport; drinking and playing cards

; some of whom reportedly

returned to snow-clearing operations the same day.

[376] Accordingly the board in GTAA concluded the random alcohol testing policy was reasonable

in the circumstances. It did not, however, reach a similar conclusion with respect to the random

drug testing policy, which it found to be an unreasonable exercise of management rights contrary to

the collective agreement.

[377] I note that the evidence submitted to establish or refute a drug problem at GTAA is not

dissimilar some of the evidence presented in this case. In concluding the evidence of

a drug

problem at GTAA insufficient to warrant random drug testing, it commenced that analysis at paras.

269-270:

Turning then to the issue of drug use at Pearson Airport, the evidence indicates

that there were two instances where employees were actually observed smoking

marijuana at work, one in the 1980's and the other in 1989 or 1990. Reference

was also made to an employee who appeared to be "stoned" after going for a

drive with another employee and one management witness recalled seeing the

butt of a joint in snow-clearing equipment. A number of management witnesses

also testified that at various times, they smelled marijuana in the workplace

.

Although reference was also made to an employee who frequently snapped his

fingers and was given a nickname b his co-workers because he was believed to be

73

high, the evidence is not sufficient to reach any reliable conclusion in that regard.

Moreover, however ill-advised it may have been for that employee to have

smoked a joint when driving home from work, again, that evidence does not

indicate that he was impaired or under the influence of drugs at work. Similarly,

although Ms. Maack gave evidence regarding a number of employees who tested

positive for particular drugs both before and after the introduction of the GTAA's

policy, that evidence does not establish that those employees were impaired at

work.

It is apparent that over the course of many years in respect of which evidence was

introduced, there have been some incidents of drug use among employees at

Pearson Airport. However, in contrast, to the use a calibrated breathalyzer for

alcohol testing, drug testing under the GTAA's policy involves urinalysis. Not only

must the requirement to provide a urine sample be regarded as highly intrusive

but, as noted repeatedly, this method of testing does not demonstrate

impairment, which is significant in the case of random testing. In reasonable

cause or post-accident/incident testing, there is some conduct on the part of the

employee or a significant accident or incident in the workplace which may

suggest that the employee is impaired and in respect of which a positive drug test

may provide corroborative evidence. In the case of random testing, in contrast,

an employee is selected for testing on the basis of a computer program.

Accordingly, there is no conduct, accident or incident on which the employer

may rely but only the results of a drug test. As such a test cannot detect

impairment, considerable evidence was introduced by the GTAA to indicate that

individuals may be affected not only be the acute effects of drugs but also by

their sub-acute effects. [emphasis added].

[378] The board in GTAA went on to consider the evidence of the experts concerning the duration

of acute of sub-acute effects of drugs as well as the longer period in which cannabis metabolites

and other can be detected in urine. It also considered the disputed evidence of hang-over and

withdrawal effects and the disputed evidence of a correlation between

a positive drug test and a

positive drug test based on urine. Indeed, a number of the epidemiological studies referenced in

GTAA were also introduced in this matter. In addition, the board considered evidence introduced

to demonstrate the efficacy of its random drug testing program, at para. 284:

I

note, as well, that in this case the evidence introduced by the GTAA regarding the

effectiveness of its random drug testing program consisted of a chart indicating a

reduction in positive drug tests following the implementation of the policy. Similar

evidence was considered in the Trimac case and found to be irrelevant. In this regard,

Arbitrator Burkett commented as follows:

The Company's reliance on the decline in positive test results over time, following

the implementation of mandatory random testing is a "bootstrap" argument. If

the technology is such that mandatory random drug testing is incapable of

determining whether an employee is under the influence at work at the time the

test is administered, as is undisputed, and if the evidence does not establish that

74

the residual effects of drug-taking pose a risk that justifies mandatory random

drug testing, then any decline in positive test results is irrelevant. It is relevant to

the issue of an employee's off-work lifestyle choices. However, it is not relevant

to the issue of whether the Company has a business interest in implementing

mandatory random testing that is sufficient to override the employee's privacy

interest in not being subjected to mandatory random drug testing.

[379] The evidence presented to the Board to establish the existence of a drug and alcohol

problem or enhanced safety risk in CRO's workplace prior to May 2012, included LTI injury rates,

HPis, post- incident and reasonable cause drug testing results and reports of drugs or suspicions of

drugs in the workplace.

[380] Dr. Macdonald assessed CRO's documented safety record at page 28 of his report, as

follows:

The Total Recordable Injury Frequency {TRIF

=

Number of Fatalities plus Medical

Aid (MA) plus Lost Time Injuries *200,000/hours worked} for Cardinal River

Operations, is equivalent to the number of injuries per 100 person years,

assuming 2,000 hours equals one person year. TRIF for 2013 was reported at

2.48 per 100 person years, which has been trending downward from a high of

18.32 in 2001. (Note: Hours worked for 2013 can be translated into person years

as follows: 967,823/2,000

=

483.9 person years, and 2.48 injuries per 100 person

years {12 MAs/483.9 100}. This rate of injuries is very low. This rate is closest to

x

the Finance, Insurance and Real Estate Sector {1.87} reported in Wickizer's study,

the work sector with the lowest injury rate and not considered safety sensitive. It

is substantially lower than the average injury rate for the intervention companies

{26.79} and higher than the non-intervention companies {14.66}. [Exhibit 47]

[381] Dr. Li also had an opportunity to comment on CRO's safety record. Although he initially

concluded that the injury rates reported at CRO were similar to those reported in the Wickizer study

of the mining industry in Washington State [Exhibit 54, Tab 27], it was established on cross

examination that Dr. Li's conclusion was based upon

a misunderstanding of how CRO injury rates

were recorded. It was pointed out to Dr. Li that, unlike how injuries were recorded in Wickizer,

CRO's injury rates were calculated on the basis of total reportable injury frequency; which included

both the less serious "medical aid" injuries and those which are more severe, the "lost time"

injuries. Although Dr. Li offered comment on what he viewed as a significant distinction between

"reportable injury" and "recorded injury", he conceded that he no independent knowledge about

how CRO kept its injury statistics.

[382] I accept Dr. Macdonald's opinion that CRO's documented injury rates have steadily reduced

since 2001: from a TRIF of 18.32 to 2.48 per 100 person years in 2013; representing

a lower rate

than at for other mining companies; a lower rate than even documented in non-safety sensitive

sectors, notwithstanding the nature of CRO's work environment. This result is consistent with

shared commitment to safety expressed throughout the hearing. This result is also consistent with

the Employer's adoption of a multi-faceted safety program in its effort to reduce perceived or

actual risk in the workplace. It has invested heavily in risk-reduction measures to combat employee

75

fatigue, stress, and problems with diet, nutrition, health and wellness; as well those which arise

with the use or misuse of drugs and alcohol, whether in workplace or elsewhere.

[383] Accordingly, I am persuaded that Dr. Macdonald's assessment of CRO's injury rates is based

upon a more thorough understanding of CRO's methodology in measuring the severity and

frequency of its workplace incidents and as such

on this issue.

, I prefer Dr. Macdonald's opinion over that of Dr. Li

[384] Even if were otherwise, on the issue of whether there is a drug and alcohol problem at CRO,

Mr. Barrie testified that there was no evidence linking a LTI with either drug or alcohol impairment

since the Employer had taken over operation of CRO in 2006. This, too, is consistent with the

decline in injury accidents at CRO. I accept Mr. Barrie's evidence on this issue.

[385] Similarly, even the Employer's move to tracking High Potential Incidents (HPis) rather than

simply recording actual workplace injuries (TRIFs), has not, in my opinion, demonstrated a sufficient

nexus to drug and alcohol use to establish a drug and alcohol problem at CRO. According to Ms.

West, had drugs or alcohol been considered

have been ordered and if positive, would have resulted in termination of employment. I accept Ms.

West's evidence on this issue. Of the 223 post-incident tests conducted over 7 year period, CRO

positive for Tylenol; 5 of which resulted in

a factor in an HPJ event, a post-incident test would

a

employees had 7 positive test results, including

termination of employment. [Exhibit 29]

1

[386] However, of the 6 post-incident positive test results, none were linked to either a LTI or to a

HPI, during a time in which the CRO's workplace safety statistics have steadily reflected increased

worker safety notwithstanding the dangers associated with this safety sensitive work environment.

[387] The reports of drugs use at CRO have also been considered. In 1999 there was an incident

at CRO which resulted in fatality; recent drug use was identified in the post-mortem toxicology

report. In October 2004, the smell of marijuana was reported but not confirmed. An employee

reported seeing someone "toke up"; no other information was introduced on this issue. The

identity of the individual was not established; the substance reported was never recovered or

confirmed to be

a drug. In 2008, a substance believed to be marijuana (but not confirmed) was

found in a haul truck; ownership was never established. It is unclear whether the substance was

tested. A baggie of crystal meth was found at Cheviot Dry, date uncertain but estimated to be late

2010;ownership was suspected but never established.

[388] I accept that the Employer has also experienced drug and alcohol use at other of its site

operations. I have been provided with aggregate drug and alcohol test results, and information

relating to injuries and fatalities outside of CRO. All such evidence does not assist in the scope of

the inquiry before me, which is restricted to evidence of a drug and alcohol problem at CRO.

[389] This conclusion applies equally to Mr. Campbell's summary of the findings of the Senior

Management Team's review and assessment of drug and alcohol incidents leading to the adoption

of random testing fails to identify, which he described as:

76

•

D&A test results in the previous 5 year period identified 50 employees

involved in incidents at the various mines had tested positive for drugs.

Drug paraphernalia and empty liquor bottles had been found on mine sites.

A number of employees had voluntarily disclosed drug and/or alcohol

problems and sought assistance.

•

A number of employees had been identified in newspaper publications

addressing drug/alcohol use in communities.

Members of the RCMP had advised the Employer of an ongoing drug/alcohol

problem both in Elk Valleyand in Hinton.

Approximately 30-40 applicants for employment failed the drug/alcohol

screen each year.

[390] In my opinion, Mr. Campbell's summary of the drug and alcohol incidents set out above is

too ambiguous is assist in the scope of the inquiry before me as it fails to identify which incidents

are related to members of CRO's bargaining unit or which incidents, if any, occurred at CRO.

[391] The lack of particularity of this evidence is similar to some of that which was submitted by

the employer submitted to the arbitration board in Suncor, discussed at para 253:

In addition to its positive ''for cause" testing experience, the Employer relied

heavily on Exhibit 63 as demonstrating further evidence of the "problem" with

alcohol at its Oil Sands Operations. This is a document relating to what the

Employer considers are "Alcohol and Drug Security Incidents" between 2004 and

September 2013 - a nine year period. It includes reference to alcohol''finds" such

as empty bottles and also drug paraphernalia and drug finds. The Employer

argues the evidence is "profound", "pervasive" and "more compelling" than any

evidence in any other case. Another adjective could be added to that list:

"unrefined". The evidence from Suncor's witness is that security was interested

in recording incidents, rather than breaking them down by specific employee or

contractor group, seniority, specific location,follow up results.

[392] However, I am satisfied that refined evidence of positive drug or alcohol test results at CRO

identify employees in whom the presence of a prohibited substance has been detected. That

evidence also established:

•

Of the 6 positive post-incident tests in a 7 year period [2005-2012], none of

which were linked to a workplace injury, accident or incident.

1of 72 reasonable cause and post-incident tests conducted in 2012-2013 was

positive, which, too, was not linked to workplace accident, injury or incident.

In 2012, there were forty-four incidents at CRO in which a "human factor"

was identified, requiring a post-incident drug and alcohol test; not one of

which was positive.

[393] Aside from the drug and alcohol testing data, both Mr. Barrie and Ms. West confirmed that

there was no other evidence suggesting or establishing a link between workplace incidents and the

77

use of drugs or alcohol. In addition I have considered CRO's safety statistics and the steady decline

in LTis,reflecting the success of the Employer's efforts to maintain or enhance workplace safety.

[394] I am in no way minimizing the significance of the forty-four workplace incidents in 2012 or

the 24 workplace incidents in 2013 in which one or more human factors was identified. However, it

is clear that based upon CRO's data, neither drugs nor alcohol were involved in a single incident

over the course of this 2 year period. It may be that other human factors are or could be linked to

some or all of these incidents,but that assessment is outside the scope of this inquiry.

[395] As for the remaining evidence of reported smells of marijuana, finding what was believed to

be marijuana, finding blue pills which were believed to be diet pills and finding a baggie of crystal

meth is, in my view, much less persuasive, particularly when weighted against the objective

evidence identified above. Even including the 3 refusals to test in 2012 in my view does not alter

the conclusions that I have reached. With respect to evidence of other incidents and drug testing

data compiled in respect mining operations other than at CRO, that evidence in my view is neither

sufficient nor persuasive in establishing a substance problem at CRO.

[396] Notwithstanding the inherent dangers of open pit mining operations, CRO safety record is

laudable. Although the Employer conceded that it has a "very good safety record", its stated goal is

zero accidents or injuries in its coal mining operations.

[397] Having regard to evidence presented by the Employer to satisfy the onus of establishing

that the random policy was introduced, in whole or in part, in response to an evident drug and

alcohol problem at CRO, I am not persuaded that the risk threshold set out in Irving Pulp has been

met in this case. As Abella J. pointed out in Irving Pulp, at paras. 29-30:

The balancing of interests approach was subsequently applied in assessing the

reasonableness of unilaterally imposed employer policies calling for universal

random drug or alcohol testing of all employees performing safety sensitive work.

Universal random testing refers to the testing of individual employees randomly

selected from all or some portion of the workforce. As in the search cases,

arbitrators rejected unilaterally imposed universal random testing policies as

unreasonable unless there had been a workplace problem with substance abuse

and the employer had exhausted alternate meansfor the dealing with the abuse.

In a workplace that is dangerous, employers are generally entitled to test

individual employees who occupy safety sensitive positions without having to

show that alternative measures have been exhausted if there is 'reasonable

cause' to believe that the employee is impaired while on duty, where the

employee has been directly involved in a workplace accident or significant

incident, or where the employee is returning from treatment for substance abuse.

[citations omitted]. [emphasis added]

[398] The Employer's onus is

a stringent one which must be satisfied in order to allow the

unilateral introduction to a no-cause random, unannounced testing regime based upon a risk

78

management approach to safety in the workplace; one which impinges upon employee privacy

rights. To date, such an approach has been overwhelming rejected by arbitrators in Canada.

[399] The Employer submits that Irving Pulp was decided on the basis of limited evidence of

a

problem with alcohol use in the workplace, an absence of any positive random alcohol tests in 2

years of testing, an absence of evidence related to alcohol use and no expert evidence of the

efficacy of random testing before the arbitrator.

[400] In my view, here, as in Irving Pulp, very limited cogent evidence of a problem with drug or

alcohol use in the workplace was presented; whether through the introduction of Employer records

or through the testimony of its witnesses immediately prior to the introduction of random testing

at CRO.

[401] On the basis of all of the evidence tendered, I have concluded that in totality, it does not

meet the risk threshold set out in Irving Pulp necessary to establish a workplace problem with drugs

or alcohol prior to the Employer's unilateral introduction of random testing in May 2012.

[402] The Employer submits that I ought to include CRO's random testing results in that

assessment.

[403] It seems to me that in order to justify the introduction of random testing, it must first be

established that a workplace problem exists prior to its introduction.

That is what the

proportionality exercise approved by the Court in Irving Pulp requires. Nonetheless, I am cognizant

of the very significant interests at stake in this matter and in response, in the event that I ought to

have included CRO's random testing results in the assessment of whether CRO has a workplace

substance use problem, I will continue the assessment on that basis.

CRO's Random Testing Results

[404] The random testing results are summarized again below for ease of reference.

[405] As of May 2012, CRO's random testing program provided for testing of 100% of its

workforce in any given year. As of August 2014, that testing protocol had not changed although the

possibility of a future reduction was under consideration

.

[406] Random testing data for 2012 and 2013 is found in Exhibits 45(a) and (b).

[407) Of the 170 random tests conducted at CRO in 2012, there were zero site alcohol positives

and 10 site non-negative drug results; 2 of which were lab confirmed positive, with 2 refusals;

representing a confirmed positive test result of 1.2% or of 2.4 %,including refusals.

[408] Random testing was introduced at the Employer's remaining Canadian mine sites in January

2013. The aggregate testing data is set out in Exhibit 45(b). Of the 4, 236 random tests scheduled

at all sites in 2013, there were 21refusals, 184 non-negative results at site; 71 of which were lab

confirmed positive and 108 were negative (inclusive of non-negative results determined to be

medications). In theory, the board was informed that the site non-negatives should equal the lab

79

"positives" and "negatives". In this case, they do not; the differential is 5 (184 less 179). Although

no one was able to explain the differential, it is of no particular significance.

[409] In 2013, CRO had approximately three hundred and forty hourly employees and 100 staff.

CRO employee drug and alcohol testing results are also set out in Exhibit 45(b). Of the 320 random

tests scheduled, 35 were site non-negative (including 3 refusals) and sent for lab testing. The

lab/MRO identified 12 positive and 20 negative test results. Of the 24 post-incident tests

conducted in 2013, none were positive for drugs or alcohol. No reasonable cause tests were

conducted at CRO in 2013. In total, 12 of the 344 drug and alcohol tests conducted at CRO in 2013

were confirmed "positive" and there were 3 refusals.

[410] The Employer also produced random testing data related to CRO in Exhibit 29. At page 2

are the aggregate results of the 374 random alcohol and drug tests conducted on "employees and

contractors, visitors" at CRO in 2013. Of those random tests, the chart indicates there were 14 lab

confirmed positive drug tests, 2 site alcohol positive tests and 3 refusals. Extrapolating from those

named in the chart [names intentionally redacted], excluding the names of contractors and

members of management who tested positive, it appears that 8 members of the bargaining unit

had positive random tests in 2013; one of whom had 2 positive tests. At the same time, of the 24

incidents in which human error was identified as

a possible contributor at CRO, none were

associated with a positive drug or alcohol post-incident test result.

[411] For 2014, page 2 of Exhibit 29 sets out the aggregate random testing results to March 2014.

Of the 104 random tests conducted, there were 5 lab confirmed positive drug tests,

1site alcohol

positive test and refusal. Again, extrapolating names disclosed on the chart it appears that

1

member of the bargaining unit tested positive for alcohol and 2 tested positive for drugs. One test

rest was described on the chart as "not sent". Thus it would appear that 3 of the 104 positive

random tests are those of members of CRO's bargaining unit.

[412] In assessing CRO's 2012-2014 random testing results, I am persuaded that when comparing

its positive test rates with those in other random testing cases, it is important to keep in mind the

differentials in both the percentage of the workforce designed to be tested in any given year (100%

at CRO),as well as in the applicable cut-off levels constituting a positive test.

[413] The experts who testified in this case disagreed whether a positive random test itself

identifies someone with a substance problem or someone with a risk of

neither.

a substance problem, or

[414] The experts also disagreed whether or not a positive test result itself constitutes evidence of

someone with performance deficits in the workplace and therefore an enhanced workplace safety

risk, or not.

[415] The Employer witnesses and experts testified that the testing cut-offs adopted in the

random testing program do not, nor are they intended to, identify, establish,evaluate or constitute

evidence of impairment in the workplace but rather, those with a risk of impairment.

80

[416] Accordingly, the traditional analysis applied to determine the existence and/or extent of

a

workplace substance problem through incidents of substance use in the workplace or impairment in

the workplace; whether established through drug test results or other cogent evidence of

substance use, does not, in my opinion, easily translate to a risk avoidance protocol.

[417] Under the Employer's random testing protocols, a positive alcohol test result is established

with a breathalyzer reading of .02 or more; a positive drug test result is established by the detection

of the presence of the certain of the parent drug metabolites in a urine sample and confirmed by

laboratory.

a

Alcohol:

[418] According to Dr. Li, within the context of

a "zero tolerance policy" adopted to prevent

injuries and to manage potential risk, a .02 BAC level refers to the minimum reliable testing result

based upon existing technology to identify an employee who is at increased risk. Thus the purpose

of testing at this level is to eliminate potential and not actual risk of injuries or accidents. In his

view, this is a reasonable cutoff limit to achieve the policy goals.

[419] CRO's random alcohol testing data contained in Exhibits 29 and 45 demonstrates that

between May 2012 and March 2014, of 716 random alcohol tests (employees and contractors)

conducted at CRO, only

1employee tested positive for alcohol. During this same period there were

no positive post-incident or reasonable cause alcohol test results.

[420) Although Dr. Li did not specifically comment on CRO's random alcohol testing data, his

evidence is consistent with CRO's low injury rates as well as the absence of workplace incidents

linked to alcohol use or to positive alcohol test results. I accept Dr. Li's opinion that

off is imposed to eliminate a risk of injury.

a .02 BAC cut•

[421] Dr. Macdonald specifically assessed CRO drug and alcohol testing data. He stated that the

CRO testing results (random: 2.9 and post-incident: 2.3) is equivalent to an odds ratio of .79.

Restricting the analysis to the inception of random testing (May 2012), he noted that CRO had no

positive post-incident test results (as of the date of the hearing); indicating that not

at the workplace was related to positive drug or alcohol-related result.

a single incident

a

[422] In addition to the random alcohol testing data, there was no other evidence introduced

establishing alcohol use in the workplace and no evidence suggestive of alcohol use in the

workplace. Accordingly, I am satisfied that based upon the totality of the evidence, including CRO's

alcohol testing data both prior to and following the introduction of random testing establishes both

an absence of an alcohol "problem" at CRO, and an absence of any real risk of an alcohol problem

at CRO.

81

Drugs:

[423] CRO employees had lab confirmed positive drug tests in 16 out of 594 random drug tests

between May 2012 and March 2014, and 5 refusals, representing 2.7% of those tested, or 3.5%

including refusals,broken down as follows

:

2012: 2 of 170 random tests were confirmed positive, 2 refusals; representing

1.2% of those tested or 2.4%, including refusals.

2013: 12 of 320 random tests were confirmed positive, 3 refusals; representing

3.8% of those tested or 4.7% including refusals.

2014: 2 of the 104 random tests were lab confirmed positive. One test result

was "not sent" to the lab so has been excluded from this summary;

representing 1.9% of those tested.

[424) Accordingly, lab confirmed positive urine drug test results provide evidence of drug use

prior to

a random drug test of 3.5% of those tested at CRO (including refusals). All experts agree

that a positive urine test does not prove impairment.

[425] The experts disagreed about what a positive urine test does signify; an issue which is

necessary to resolve in order to determine whether or not the random drug testing results

meaningfully establish the existence of

a drug "problem" at CRO.

[426] Dr. Francescutti opined the role and purpose of random testing is to identify those who may

have a drug and/or alcohol problem and to offer help.

[427) According to Dr. Li, the prevalence of drug use in those in safety sensitive positions above

zero means that drug users are

a safety risk for occupational accidents. He opined that "any

increased risk should be a concern".

[428] In Dr. Beckson's view, a positive urine test, using statistical probabilities, indicates someone

with a drug problem and, more likely than not, is someone who has come to work impaired at least

some of the time and is an elevated safety risk at work as a result. By way of example, he said the

presence of

a cocaine metabolite in a urine test will demonstrate that the donor has used cocaine

recently and even if in a "crash" period at the time of the test, as the user would test positive by

urine but negative by blood.

[429] Dr. Kadehjian testified that the cut-off level for amphetamines and methamphetamines

used at CRO is designed to identify use is generally within the previous day or two, but

acknowledged how long an individual might "stay positive" is dosage dependant.

[430] Drs. Li, Kadehjian and Beckson are all of the view that a positive test result, regardless of the

drug, reflects an individual with an increased risk of performance deficits and therefore constitutes

a

safety risk in the workplace.

[431] In contrast, Dr. Macdonald focused on the use of prohibited substances in the workplace

and impairment in the workplace; each of which is associated with performance deficits during

82

periods of being "under the influence" of the acute effects of drugs; periods not necessarily caught

by a positive urine test.

[432] In his reply report [Exhibit 48], Dr. Macdonald disputed some of the conclusions reached by

Drs. Kadehjian and Beckson regarding what

a positive urine test establishes. He noted, in particular,

that their conclusions were based in part, upon studies of the acute effects of drugs and alcohol in

,

which the active ingredient of the drug has been identified, and not the drug's metabolites that are

detected in urine.

[433] In Dr. Macdonald's opinion, the weight of the literature establishes that urine tests do not

measure impairment and cannot be used to measure performance deficits. He reiterated that

there is no established relationship between

a positive urine test and crash risk and that the science

does not support the Employer's expert opinions to the contrary. Dr. Macdonald surmised they

relied upon the results of lesser quality studies or failed to rely solely on results of urine tests in

expressing their conclusions. In his opinion, the higher quality epidemiological studies looking at

urine tests and safety risks find no relationship between them.

[434] Dr. Li and Dr. Macdonald were particularly at odds over whether a positive urine test for

marijuana identifies someone at an increased risk in injury/accident in the workplace. The debate

focused on whether epidemiological studies have demonstrated an increased crash risk on the basis

of a positive urine test identifying the presence not of THC, the active ingredient associated with

acute effects, but the parent drug metabolite, THC-COOH.

[435] Dr. Macdonald is strongly of the view that urine testing is not a valid detector of

performance deficits or a valid indicator of safety risk. Having reviewed the literature, Dr.

Macdonald found no studies which have established a causal relationship between urine

concentration levels and performance deficits.

[436] Dr. Macdonald opined that it is the active ingredient of cannabis (THC) and not its

metabolized by-product (THC-COOH) that affects performance. He explained that the presence of

THC is detected in blood tests and not in urine tests. He stated that the preponderance of

epidemiological studies using blood tests have found that those testing positive for THC are more

likely to be in crashes; but that no such relationship has been identified between urine testing and

crash risk.

[437] Dr. Li took issue with Dr. Macdonald's conclusion that "studies using urine tests have failed

to find that those with positive tests are significantly more likely to be in collisions that those with

negative tests". In doing so,Dr. Li referenced

a number of studies in support of his opinion, some of

which he later conceded either had not conducted urine tests or had not demonstrated an

association between cannabis and crash risk. Those studies included: Callaghan [Exhibit 54,Tab 6],

Asbridge [Exhibit 54, Tab 2]; Asbridge [Exhibit 54, Tab 1, 3 of 9 studies did not use urine testing],

Hartmann [Exhibit 54,Tab 11].

[438] Dr. Li testified that even recreational drug users represent a safety risk in the workplace. He

gave little weight to Dr. Macdonald's reliance upon older studies that failed to find a statistically

significant crash risk associated with a positive urine test (identifying the inactive metabolite THC-

83

COOH). He did so on the basis not only that the composition/concentration of the drug had

changed over the years but also on the evolution of the research into these areas, but having regard

to more recent areas of research which found a positive correlation between drug use and accident

risk.

[439] In support of his views, Dr. Li referenced one of his studies in which he found that all drugs,

including marijuana and other stimulants/narcotics, are associated with "significant increase risk for

fatal crash involvement". He opined that marijuana is associated with doubling the crash risk in

drivers. He added that marijuana and alcohol use in combination suggests an odds ratio in this

study of 23. [Drug use and fatal motor vehicle crashes {2013): Exhibit 54,Tab 18].

[440] Dr. Macdonald confirmed that in preparing his reports and as expressed in his testimony

before the board, he restricted his analysis to studies using urine tests because it is urine testing

that the Employer adopted in its random testing program.

(441] Accordingly, he opined, reliance upon studies using or incorporating blood test data are

unhelpful because they include in the reported results those obtained from THC (acute effects),

which would necessarily skew the results of any crash risk associated with the inactive metabolite

(THC-COOH) identified in urine tests.

(442) Dr. Macdonald asserts that Dr. Li did just that; rendering his conclusions unreliable. He

commented on one of Dr. Li's own studies that Dr. Li spoke of during his testimony, Drug use and

fatal motor vehicle crashes: A case-control study [see para.434]. Dr. Macdonald identified two

weaknesses in this study: bias in the group design and failure to undertake a multivariate analysis,

rendering the stated conclusions unjustifiable. Dr. Li's study compared blood tests of drivers in

fatal accidents with individuals who agreed to participate in a roadside survey. Blood tests were

used for those in the fatal accidents while oral fluid tests were applied to the "control" population,

being those who agreed to participate. Dr. Macdonald also pointed out that Dr. Li failed to specify

whether he was looking at active THC or the inactive metabolite with respect to cannabis. These

biases point to over-representation of drug use in the fatal accident group and under•

representation in the controls and working simultaneously increase the odds ratios.

[443] Dr. Macdonald also referenced another study upon which Dr. Li relied, Hartman and Huestis

[Exhibit 54, Tab 10], which, in his view, actually supports Dr. Macdonald's opinion that testing

people for THC-COOH [inactive metabolite] is not an accurate approach and that those studies using

urine tests have failed to find a relationship or are otherwise fundamentally flawed and therefore

unreliable.

(444) Dr. Macdonald also referenced Dr. Li's reliance on the Wickizer study [Exhibit 49, Vol 2, Tab

84]. This study evaluated the introduction of a five component drug testing program in

company in which injury rates were compared during three periods: pre-intervention, intervention

and post-intervention, on the basis of the application of number of assumptions particularly

a mining

a

during the pre and post intervention periods. Although the study found a jump in injury rates

between the intervention period (20.41) and the post-intervention period (50.22), even the study's

authors acknowledged that without knowing whether the company maintained or discontinued the

drug testing program in the post-intervention period, it is unreasonable to attribute the post-

84

intervention increase in reported injury rates to a discontinuance of the drug testing program; such

detail was lacking thus undermining the conclusions reached.

[445] In responding to Dr. Macdonald's criticism of the Wickizer study, Dr. Li acknowledged that

random testing was a voluntary aspect of the drug-free workplace program. However, he stated

that the authors' purpose in Wickizer was to evaluate the program itself, and not its individual

components. He also acknowledged that this study did not identify companies that already had a

drug testing program in place in the pre-implementation period or those which continued the drug

testing program upon the "expiry" of the incentive program; each of which might impact upon the

findings reported by the authors.

[446] In assessing the appropriate weight to be applied to the evidence of the various experts,

note that Dr. Li's assessment that a positive test results represents an increased risk for

occupational accidents has not translated into actual occupational accidents as demonstrated by

CRO's post-incident and reasonable cause test results.

[447] Similarly, Drs. Beckson and Kadehjian's opinions that a positive urine test reflects

a period of

performance deficits is similarly not reflected in CRO's injury statistics, HPI statistics or its post•

incident test or reasonable cause test results. While the theory may be well-established, the reality

of CRO's injury/accident/injury experience simply does not reflect the "likelihood" or statistical

probability that employees who test positive are or have been impaired in the workplace.

[448] The Employer urged me to discount Dr. Macdonald's evidence on the basis that he

demonstrated or admitted a bias against random testing. In my view, there is no cogent evidence

to support such an assertion. In carefully considering and evaluating the expert testimony of Drs.

Macdonald, Beckson, Kadehjian, Francescutti and Li, I am satisfied that each expert, who I accept is

highly regarded in their respective fields, appeared in

a professional capacity and provided their

expertise to assist the Board in its deliberations. While some of the experts did concede to being

"advocates" in one fashion or another, in such areas as injury prevention for example, such

assertions in my view are illustrative of candour and not of bias. In my opinion, even if personal

views were expressed during the course of the hearing, such personal opinions would carry no

weight in this context in any event.

[449] Where Dr. Li and Dr. Macdonald's opinions diverge, I prefer the evidence of Dr. Macdonald

because I am persuaded it is the more reliable of the two in assessing the matters before me.

reached this conclusion having regard to the following:

I

•

Dr. Macdonald restricted his opinions to studies which reflected the random

testing regime adopted by CRO. Dr. Li's opinions were based, in part, upon

studies which included in the reported assessment of crash risk, those

reflected by the acute effects of drugs and not solely just those which

identified the inactive metabolite.

•

Dr. Macdonald more specifically addressed CRO's injury, accident, near-miss

and testing rates, which is preferable to the broader analysis provided by Dr.

Li.

85

•

Dr. Macdonald's published assessment of an absence of crash risk based

solely on urine testing has survived the scrutiny of peer-reviewed journals.

[Exhibit 49,Tab58, p. 413]

Upon examination of some of the studies on which Dr. Li relied to refute Dr.

Macdonald's opinions, he later acknowledged some of the limitations in his

expressed opinions, Wickizer for example.

[450] According to Dr. Macdonald from an epidemiological perspective, if drug use is a major

cause of workplace accidents, one would expect that the percentage of employees testing positive

after incidents or accidents would be much higher than those from random tests. This, too, is not

demonstrated by CRO's drug test results.

[451] Dr. Macdonald assessed CRO drug and alcohol testing data. He stated that the CRO testing

results (random: 2.9 and post-incident: 2.3) is equivalent to an odds ratio of .79. Restricting the

analysis to the inception of random testing (May 2012), he noted that CRO had no positive post•

incident test results (as of the date of the hearing); indicating that not

a single incident at the

workplace was related to a positive drug or alcohol-related result. At the same time he reiterated

that comparing crude odds ratios is too simplistic (in this case yielding an odds ratio of 1); he opined

that if urine testing had validity in terms of detecting performance deficits related to job incidents,

one would expect a higher odds ratio.

[452] Based upon the epidemiological evidence available to date, Dr. Macdonald concluded that

there is no or insufficient evidence to establish that drugs are a risk factor for accidents or incidents

in the CRO workplace. The weight of the evidence submitted to this Board to demonstrate risky

drug use at CRO, in my opinion, failed to reach the necessary risk threshold and accords with Dr.

Macdonald's risk assessment. Accordingly, I accept Dr. Macdonald's opinion on this issue.

[453] I accept that there is some evidence of drug use among CRO bargaining unit members on

the basis of a positive urine test. I find the historical data of substance use at CRO less compelling

and persuasive than is the more current evidence of drug or alcohol use, particularly at the time

that the Employer sought to introduce random testing.

[454] Even including positive random test data, I find that the evidence failed to establish a

correlation to workplace accidents, injuries or to high potential incident experience rates at CRO.

I

reach this conclusion having also considered the evidence of the Employer's experts who opined

that a positive test result identifies an individual who is at risk of performance deficits or who is

experiencing performance deficits in such a degree as to constitute an unacceptable risk in a

dangerous workplace. I can only conclude that the performance deficit risks identified by these

experts are not demonstrated in CRO's documented LTI and HPI incidents and accidents, having

particular regard to those which caused the Employer to require either a reasonable cause or

a

post-incident drug and alcohol test. The notable absence of any positive reasonable-cause and

post-incident test results associated with any LTI and HPI incidents at CRO undermines, in my view,

the causative correlation or association between a positive urine test and unacceptable risk that the

experts sought to establish.

86

[455] The requirement of sufficient evidence of

a workplace substance problem to justify

mandatory universal drug and alcohol testing in Canada has been consistently identified in the

majority of the arbitration decisions touching on this issue. [See: Re Provincial-American Truck

Transporters and Teamsters Union Local880 {1991} 18 L.A.C. {4th) 412 (Brent)]; [Re Esso Petroleum

Canada v. Communications, Energy, & Paperworkers' Union, Local 614, [1994] B.C.C.A.A.A. No. 244,

56 L.A.C. (4th) 440 (McAlpine); Metropol Security, a division of Barnes Security Services Ltd. and

U.S.W.A., Loc. 5296 (Drug and Alcohol testing) (Re), [1998] O.L.A.A. No. 1052, 69 L.A.C. (4th) 399

(Whitake); Trimac Transportation Services- Bulk Systems v. Transportation Communications Union,

88 L.A.C. (4th) 237, [1999] C.L.A.D. No. 750 (Burkett); Petro-Canada Lubricants Centre (Mississauga)

v. Communications, Energy and Paperworkers Union of Canada, Local 593 (Alcohol and Drug Policies

Grievance), [2009] O.L.A.A. No. 400, 186 L.A.C. (4th) 424 (Kaplan).]

[456] Accordingly, on the basis of the totality of the evidence before me, I have concluded that

the Employer has failed to establish either a drug or alcohol problem or enhanced safety risks at

CRO in sufficient degree in order to justify its imposition of random drug and alcohol testing in May

2012.

[457] This conclusion is consistent with the arbitration board's decision in Irving Pulp upheld by

the Court:

...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. [para.8]

[emphasis added]

[458] Accordingly, I have concluded that the Employer's random testing policies are an

unreasonable exercise of management rights contrary to the collective agreement. On this basis

alone,I would allow the grievance.

[459] However, the Employer submits that unlike other random drug and alcohol cases, its

purpose in introducing random testing is also a risk reduction exercise to enhance workplace safety

through its identification of those it perceives to create enhanced safety risks within a safety

sensitive work environment, evidenced by a positive drug or alcohol test.

[460] The Employer submits that it is the establishment of that risk which justifies its random

testing policy and that employee privacy rights are necessarily subordinate to its enhanced

workplace safety objective.

[461] To the extent that it may be prudent or necessary to include in the proportionality

assessment approved in Irving Pulp, an evaluation of the reasonableness of a risk reduction

objective in the adoption of a random testing program, even in the absence of

a demonstrated

substance use problem and regardless of the presence or absence of disciplinary consequences,

that assessment follows.

87

[462] In commencing its proportionality analysis in Irving Pulp, the Court had this to say:

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 statues are, as a

result, of little conceptual assistance (Entrap v. Imperial Oil Ltd. (2000}, SO O.R.

(3d} 18 C.A.}}.

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.

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

delicate, case-by-case balancing required to preserve public safety concerns while

protecting privacy

- and successfully - included the

.

....And, as we saw in Entrap, 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. [paras.17-20]

[463] As noted earlier in this Award, the predecessor drug and alcohol policies implemented at

CRO in 2000 and in 2005, were either a joint Employer/Union initiative or introduced with Union

support. In each case, the Union acknowledged the existence of a substance use problem in the

workplace and participated in the adoption of safety measures in response.

[464] Arbitration boards have long permitted reasonable cause and post-incident drug and

alcohol testing in a safety sensitive workplace. [See: Nanticoke, supra; Fording Coal Ltd. V. USW,

Local 7884, [2002] B.C.C.A.A.A. No. 9 (Hope); Fording Coal Ltd. V. USW, Local 7884 (Rector

Grievance), 97 L.A.C. (4th) 289 (Devine); Bullmoose Operating Corp. v. CEP, Local 443 [1999]

B.C.C.A.A.A. No. 254 (Greyell).].

[465] It is equally evident that "for cause" alcohol and drug testing has long been in place at CRO

and accepted by the Union and members of its bargaining unit, even with its attendant disciplinary

consequences. As BUE# 5 explained, although she did not like having to provide urine samples in

a

post-incident drug test and although the drug test was negative, she accepted its legitimacy

because she was not only involved in an incident, she admitted that she was at fault for the

incident.

88

[466) Accordingly, in this particular work environment, negotiating workplace conditions which

balance safety and privacy interests has had repeated success in the past.

[467) Such is not the case with the Employer's introduction of random testing. The Union submits

that random testing constitutes an unreasonable, unjustified and unwarranted intrusion upon

significant employee privacy rights; moreso in light of CRO's safety record and in the absence of

demonstrated workplace problem with substance abuse.

a

[468) The "universally accepted" analysis of a unilaterally imposed workplace rule, referred to as

the "KVP test" is summarized in Donald J. M. Brown & David M. Beatty, Canadian Labour

Arbitration_ 4th ed. (Aurora, Ont.: Canada Law Book, 2006) (loose-leaf updated 2014, release 39) ch

4 at 4:1520 as follows:

A rule unilaterally introduced by the company, and not subsequently agreed to by the

union, must satisfy the following requisites:

1. It must not be inconsistent with the collective agreement.

2. It must not be unreasonable.

3. It must be clear and unequivocal.

4. It must be brought to the attention of the employee affected before the

company can act on it.

5. 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.

6. Such ruleshould have consistently enforced by the company from the time it

was introduced.

[469) In my view, the Employer has met the KVP test with respect to items 3, 4, 5, and 6. In terms

of the collective agreement, I note there is nothing in its current terms which expressly prohibits

random testing. As such, on its face, random testing cannot be said to be "inconsistent" with its

terms.

[470) The focus of the balance of this analysis is to determine whether random testing is

a

reasonable exercise of management rights, even in the absence of a demonstrated workplace

substance problem. That exercise requires an assessment of proportionality of the intrusions into

employee privacy rights triggered by the mandatory policy provisions, as compared to its actual or

anticipated gains in the CRO work environment.

The Proportionality Analysis

[471) A safe workplace is without doubt an important and desirable goal. However, it is not the

goal that is in issue in this case but, rather, the means imposed to lawfully achieve that goal.

[472) The framework for analysis of the scope of unilateral employer responses to substance use

of members of a bargaining unit, actual or perceived, and to random testing in particular, has been

considered in a number of arbitration cases. In doing so, arbitrators have identified and articulated

89

a

number of significant distinctions between the Canadian and American approaches to safety and

privacy interests in the workplace.

[473] Arbitrator McAlpine in lOCO, supra, considered an employer's unilateral imposition of

a

drug and alcohol policy pursuant to a management rights clause under a collective agreement. In

that context he had occasion to consider how some of those distinctions arose,at paras. 38-40:

The impetus in the United States for mandatory testing was provided by President

Reagan's executive order of 1986 requiring all Federal Agencies to establish

compulsory drug testing for current and prospective employees. It is reported

that be September of 1992 some forty Federal Agencies had established

mandatory testing programs. There is no parallel to this history in Canada.

In Canada in 1987 Prime Minister Mulroney announced a national drug strategy.

An all party committee of the House of Commons was established.

The

Committee's Report of 1988, left it to the government to delineate the

circumstances in which mandatory testing be permitted. It was the Committee's

view that mass or random testing ought to be prohibited.

...In Canada, unlike the United States, there is no legislation addressing the issue

of mandatory testing in Canada.

[474] He also noted the importance of acknowledging the essential context in which workplace

rules are applied, citing with approval at para. 74, Chief Justice Dickson's thoughtful statement

about the importance of work [In the matter of a Reference and the compulsory Arbitration

Provisionsfound in the Public Service Employee Relations Act [1987] R.C.S. 313 at p. 368:

Work is one of the most fundamental aspects in a person's life, providing the

individual with a means of financial support and, as importantly, a contributory

role in society. A person's employment is an essential component of his or her

sense of identity, self-worth and emotional well-being.

Accordingly, the

conditions in which a person works are highly significant in shaping the whole

compendium of psychological, emotional and physical elements of a person's

dignity and self-respect....[emphasis added]

[475] Similarly,Arbitrator Picherin Nanticoke, supra, spoke of the distinctions between the north•

south divide in approaches to drug testing in

a safety sensitive workplace, at para. 103:

In approaching this highly sensitive issue we consider it important to bear in mind

the overall legal context within which the preponderant arbitral principles, as

reflected in cases such as CN, Dupont and Trimac, gradually emerged. Neither

the Parliament of Canada nor any of the provincial legislatures has legislated to

grant to employers the statutory or regulatory authority to conduct alcohol or

drug testing. That is to be contrasted with the drug testing regime in the Unites

(sic) States, which is highly legislated and regulated, essentially allowing much

broader scope for the alcohol or drug testing of employees than is the case in

90

Canada. It is not unreasonable to conclude that Canadian legislators have

recognized the right of an employer, particularly in a safety sensitive industry, to

conduct alcohol or drug testing of its employees where there is reasonable cause

to do so, or where an incident or accident would justify it, or as part of

rehabilitation, continuing employment.

[476] While the Employer acknowledges that a privacy infringement arises in the context of

random testing, it characterizes the infringement as relatively minimal; and suggests that it is

similar to undergoing a urine test in

a doctor's office. In that vein, Dr. Kadehjian opined that urine

testing reflects the practical realities of workplace testing, replacing invasive punctures to the body

with the surrender of a waste product voluntarily relinquished. The weight of arbitral jurisprudence

on this issue does not accord with these views.

[477] A no-cause random testing protocol mandating the delivery of bodily fluids has been

assessed in a number of arbitration decisions throughout Canada; a sampling of which follows:

•

The invasion of that privacy by the random testing policy is not a trifle. It effects

significant inroad. Specifically, it involves a bodily intrusion and the surrender

a

of bodily fluids. 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. [Irving Pulp board

decision,cited with approval by Abella, J, at para.14].

•

In comparing the intrusions occasioned by camera surveillance or searches in the

workplace to that which is required in drug and alcohol testing cases, the board

in Nanticoke, supra at para. 126 considered

"....the surrender of bodily

substances, whether by breath, urine, fluids or otherwise, [was viewed] as a far

more serious matter."

In Health Employers Assn. of British Columbia v. Health Sciences Assn. (Influenza

Control Program Policy Grievance), [2013] B.C.C.A.A.A. No. 138, 237 L.A.C. (4th) 1,

a

case which considered the reasonableness of a unilaterally imposed policy

requiring employees in acute care settings to either have flu shot or wear

a

mask, noted at para. 163: "The privacy interest in Irving was especially

significant, because it involved bodily intervention. The majority cited prior

Supreme Court of Canada authority that consider mandatory drug and alcohol

testing by urine, blood or breath sample "highly intrusive" and therefore subject

to stringent standards.

•

Cited by Abella J. in Irving Pulp at para. SO:

And in R. Shaker, 2006 SCC44, [2006] 2 S.C.R. 399,it [the court] notably drew no

v

distinction between drug and alcohol testing by urine, blood or breath sample,

concluding that the "seizure of bodily samples is highly intrusive and, as this

Court has often affirmed, it is subject to stringent standards and safeguards to

meet constitutional requirements" (para. 23).

91

[478] The arbitration board in Trimac Transportation Services

- Bulk Systems v. Transportation

Communications Union, 88 L.A.C. (4th) 237, [1999] C.L.A.D. No. 750, had occasion, some 16 years

ago, to consider the introduction of a mandatory drug and alcohol testing program on the basis of a

"risk avoidance" management approach;

a consideration somewhat analogous to the circumstances

before me. I find that its analysis remains germane, some of which is set out below [paras. 41, 42,

43):

Because the objective of providing a safe and productive work environment is

unassailable and because privacy interests are somewhat nebulous, it is easy to

weigh in on the side of mandatory random drug testing, especially in a safety

sensitive industry. It is easy to support the implementation of any policy that is

designed to promote a safe and productive work environment and, on its face,

has the potential to do so. However, when the privacy interest is understood, the

debate takes on another dimension. It becomes not just a question of the efficacy

of mandatory random testing, vis-a-vis the objective of a safe and productive

work environment but rather a debate concerning the reconciliation of two

competing interests. The "best" reconciliation of two legitimate but competing

interests is achieved by measuring their competing impacts. Accordingly, an

assessment of the extent to which mandatory random drug testing furthers the

objective of a safe and productive workplace and a corresponding assessment of

the extent to which it invades individual privacy is required.

Against this background it is useful to discuss in broad terms the meaning and

importance of privacy in the Canadian setting. The right to one's privacy is the

right to protection from the unwarranted intrusion of others in one's life. The

underlying premise is that in a democratic society, an individual is free to live as

he/she pleases without interference or monitoring, so long as there is no adverse

impact upon another nor breach of the law. The Canadian acceptance of the

right to privacy is traced through legislation, international and constitutional/ow,

scholarly writings and judicial statements by Oscapella in Drug Testing and

Privacy, Vol. 2, Canadian Labour Law Journal 325. The conclusion there is that

privacy, as protected under Section 8 of the Charter, is "an essential value in

Canadian society".

**************

The recognition of employee privacy is a core workplace value, albeit one that is

not absolute.....

[479] In conducting this proportionality exercise, I am mindful that the evidence of the

experiences of long-term CRO bargaining-unit members in the random testing process is relevant to

an assessment of the degree of its encroachment upon privacy rights. Those members who

testified invariably felt mistrusted; while some felt disrespected, coerced and without rights.

Others felt the process undignified and embarrassing. These feelings are, in my view, an important

consideration when juxtaposed against no-cause random testing and its mandatory sequelae for

those deemed to be an enhanced workplace risk by virtue of a confirmed positive test result. These

92

feelings are equally an important consideration in evaluating the proportionality of the Employer's

response to its risk assessment.

[480] In summary, universal no-cause random testing has been consistently described as an

intrusive process and a significant infringement upon employee privacy interests within the

workplace. I agree. In my opinion, it is not just the requirement to surrender bodily fluids that

infringes upon privacy rights. Rather, that infringement extends and endures, in varying degrees,

throughout the testing protocols, some of which include: removal from the workplace; escorted

attendance for mandatory testing; the nature of the mandatory steps required throughout the

testing protocols; the nature and extent of personal disclosures required throughout the

Assessment process; and, for those without a substance abuse, dependence or addiction problem,

the further encroachments required under

a Monitoring Agreements for a 2 year period.

[481] In explaining the basis of its introduction of random testing, the Employer identified its

legal, moral and ethical obligation to take all reasonable measures to enhance the safety of its

workplace and avoid accidents and injuries. In its efforts to meet those obligations in

a dangerous

work environment, it feels it must continually strive to improve upon existing safety practices and

adopt best practices in risk management.

[482] The Employer states that through its random testing program, it identifies, removes and

assists those with substance abuse problems. It also identifies, removes and assists those who use

drugs or alcohol in

a manner which creates a safety risk. It deters at least some from continued

risky drug and alcohol use.

[483] It submits that its experts established that:

•

anyone testing positive represent an increased safety risk even if not impaired

when taking the test;

drug or alcohol use is a significant contributor to accidents and injuries in society

and in workplaces;

random testing has

a significant deterrent effect and thereby reduces the risk of

accidents or injuries caused or contributed by impairment from drugs or alcohol;

random testing is a beneficial risk reduction strategy and safety intervention at

CRO.

[484] The Employer also submits that random testing is consistent with pre-employment,

reasonable cause and post-incident testing that is already in place; it is only the frequency and

extent of testing that has changed.

[485] During the course of the hearing the Employer introduced evidence of the difficulty in

identifying employees who may have engaged in

a risky use of alcohol or drugs without random

testing. It related incidents in which drugs or suspected drugs had been found on site, causing a

suspicion that drugs may have been ingested

.

That evidence has been outlined throughout this

Award.

93

[486] It also introduced evidence of the deterrent effect associated with random testing, largely

introduced through its experts and through reports and studies in jurisdictions outside of Canada.

That evidence included Dr. Li's assessment that of all of the testing programs, he described random

testing as having the most important or powerful deterrence effect. He spoke of the decline in

positive drug tests in the United States over the 25 year period in which mandatory drug testing had

been in place following President Reagan's Executive Order in 1986. Dr. Li attributed the reduction

to random testing on the basis that

"...over 90 percent of actual alcohol and drug tests on

employees were done on the random alcohol and drug testing program."

[487]

In contrast, Dr. Macdonald pointed out that a mere drop in the number of positive urine

decline in positivity rates

test results in the absence of corresponding research demonstrating that

a

signifies that fewer employees are impaired on the job or that workplaces in which random testing

has been introduced are thereby safer,undermines any conclusions drawn from the "numbers".

[488] The deterrent effect attributed to random testing was also considered in Irving Pulp, which

Abella,J. summarized at para. 48:

While the employer had argued that deterrence was a major benefit of random

alcohol testing, the board was not satisfied that there was any evidence of a

deterrent effect at the mill. The only evidence supporting the employer's view

was that of its expert witness, who described deterrence as the main theoretical

goal of random alcohol testing policies, but had no information about this

particular workplace. In the board's view, the lack of any positive test results in

almost two years of random alcohol testing was equally consistent with the

opposite conclusion: that there was no workplace alcohol abuse to deter.

[489] The Employer pointed out that less intrusive measures are inadequate to identify those at

risk and it urges me to adopt the approach applied by the arbitration board in United Association of

Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and

Canada, Local488 v Bantrel Constructors Co., 2009 ABCA 84, [2007] A.G.A.A. No. 33 (Bantrel) even

though the Bantrel decision was later quashed on other grounds on appeal [United Association of

Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and

Canada, Local 488 v. Bantrel Constructors Co.,2009 ABCA 84).

[490] Commenting on the short-comings of measures other than random testing in identifying

risk, the Board in Bantrel stated at p.32:

With respect to the availability of less intrusive measures, we are not satisfied

that other measures are available which can accomplish the same risk

management objectives. In particular we do not agree with the arbitrator in

Sarnia Cranes that peer and supervisory observation is at least as effective.

Evidence before us was to the effect that its effectiveness was questionable at

best (except in the perhaps most obvious cases). We note that this is not a

circumstance where employment testing was the first option. In fact, it appears

that was the last option to be exercised. Numerous safety programs were in

place on the Bantrel site. Risk management was a priority from the first day of

94

construction on the EDD site. Yet 4 of the 6 post incident tests prior to the

adoption of the drug and alcohol policy were positive. These are individuals who

were required to meet with a supervisor at the start and end of their shifts.

[491] In my view, amongst the hurdles the Employer must overcome in this analysis is not only

that its unilateral imposition of random testing in the absence of

a workplace substance problem is

a reasonable and proportionate safety measure, but that it does so in the absence of cogent

evidence that the "for cause" testing protocols already in place do not adequately respond to the

risks to which random testing is intended to respond. This point is particularly illustrated in the

absence of a correlation between risky drug or alcohol use and CRO's post-incident and reasonable

cause test results

.

[492] I have no doubt or any reservation about the sincerity of the Employer's expressed desire to

achieve an accident-free workplace. I recognize its considerable efforts to achieve this goal in part

through its investment in a multi-faceted workplace safety program.

[493] However, the Canadian approach to random testing requires cogent evidence of enhanced

workplace risk, such as evidence of

a workplace substance use problem, in order to justify its

unilateral imposition within a collective bargaining framework.

[494] Having regard all of the evidence, I am persuaded that the Employer has failed to meet that

risk threshold; having failed to reasonably establish either an enhanced safety risk at CRO on the

basis of drug or alcohol use by members of the bargaining unit or a substance use problem at CRO.

While I do not propose to repeat the assessment of the evidence,

this conclusion considerations included:

I would point out that in reaching

•

CRO's safety records and statistics;

the steady decline in injury rates at CRO;

low positive alcohol and drug test results;

an absence of any link between TRIF rates and alcohol or drug use since the

Employer took over CRO in 2006;

•

an absence of any link between a High Potential Incident and alcohol or drug

use;

an absence of any link between a workplace incident in which a "human

factor" was identified and a positive drug or alcohol test.

[495] In my respectful opinion, these conclusions equally demonstrate the absence of any link

between incidents, accidents or HPis at CRO and actual or anticipated "performance deficits" which

the Employer's experts associated with sub-acute, hang-over or residual effects of drug and alcohol

use, on the basis of a positive urine drug test or a positive alcohol test under the Employer's

random testing program. Thus, I also find an absence of sufficient cogent evidence to establish that

any risk of impairment or that the risk of performance deficits constitutes an enhanced safety risk

in the CRO work environment.

95

[496]

Accordingly, based upon these findings and conclusions, I am persuaded that the Employer's

anticipated or expected safety gains from random testing are, in my view, uncertain or minimal. As

such, the Employer has failed to justify the need for its unilaterally imposed safety measure which

find so significantly intrudes on employee privacy interests.

I

[497]

For these reasons, the grievance is allowed. The Board finds the Employer's mandatory

universal random drug and alcohol testing program and its associated protocols and related policy

provisions set out Teck Coal Limited Management Policy No. 27: Alcohol Policy; Teck Coal Limited

Management Policy No. 28: Illegal Drug Policy and Teck Coal Limited Management Policy No 29:

Medication Use Policy are an unreasonable exercise of its management rights under the collective

agreement in violation of the collective agreement, and are declared null and void and of no force

or effect.

[498]

I note that the ancillary statutory grounds upon which the grievance was filed as set out in

Exhibit 3 were not explored or pursued during the hearing. In light of the findings and conclusions

set out herein, I am persuaded that it is unnecessary to determine these ancillary grounds.

[499]

I wish to acknowledge the efforts and abilities of counsel throughout the course of the

hearing, which rendered considerable assistance to the Board.

[500]

I reserve jurisdiction to resolve any issues which arise in connection with the interpretation

or implementation of the award as well as with respect to other outstanding grievances or disputes

of which I am seized.

Dated this 7th day of December, 2015, at the City of Edmonton, in the Province of Alberta

.

96

APPENDIX A LIST

OF EXHIBITS

No.

Description

1. Collective Agreement between Cardinal River Operations and the United Mine Workers of

America Local1656, Effective: July 1, 2007- June 30, 2012 (63 pages)

Collective Agreement between Teck Coal Limited and the United Mine Workers of America

Local1656, Effective: July 1, 2012- June 30, 2017 (89 pages)

2.

United Mine Workers of America Local1656 Grievance, filed May 14, 2012 (2 pages)

Teck Coal Limited Management Policy No. 27: Alcohol Policy (6 pages)

Teck Coal Limited Management Policy No. 28: Illegal Drug Policy (7 pages)

Teck Coal Limited Management Policy No. 29: Medication Use Policy (7 pages)

3

.

4.

5.

6.

7.

8.

9.

Teck Coal Limited Standard Practices

& Procedures- Alcohol and Drug Testing (27 pages)

Branan Medical Corporation- Toxcup ® Drug Screen Cup Package Insert (6 pages)

Testing process consent forms and documents (14 pages)

Teck Coal Limited Standard Practices

Policy Pre-2012 (11pages)

& Procedures Alcohol, Illegal Drugs & Medication

10.

Letter from Teck Coal Limited, dated December 9, 2013 (1page)

11

.

United Mine Workers of America, letter to Mike Barrie, December 12, 2013 (1page)

Statement of expert opinion by Dr. Louis Hugo Francescutti (26 pages)

12.

13.

14. Curriculum Vitae of Louis Hugo Francescutti dated October 2013 (86 pages)

Alberta Centre for Injury Control Research- Preventing Injuries in Alberta: A

&

15. Tab

Resource for Decision Makers (48 pages)

Alberta Health Services- Copyright Notice (8 pages)

Tab 2

Tab 3

Alberta Centre for Injury Control

Alberta Injuries 2012 (112 pages)

& Research - Preventing Injuries in Alberta:

Tab

4

Sweden's experience in reducing childhood injuries- Abraham B. Bergmen and

Frederick P. Rivara,Pediatrics 1991; 88: 69-74 (8 pages)

The health of adolescents and youth: A global overview-Herbert L. Friedman,

World Health Statistics Quarterly 1985; 38(3): 256-266 (11pages)

Tab 5

Tab 6

Tab 7

A nation of suspects: Drug testing and the Fourth Amendment

Glantz, Am Public Health 1989; 79(10): 1427-1431(5 pages)

Workplace alcohol-testing programs: Prevalence and trends

Leonard

H.

J

Tyler D.

Hartwell, Paul D. Steele, and Nathaniel F. Rodman, Monthly Labor Review

1998: 27-34 (8 pages)

The Economic Burden of Unintentional Injury in Canada (63 pages)

Insurance Institute for Highway Safety Highway Loss Data Institute Alcohol-

impaired driving (5 pages)

Tab 8

Tab 9

Accidents in children, adolescents and young adults: A major public health

Tab 10

problem

- Michel Manciaux and Claude J. Romer, World Health Statistics

Quarterly 1986; 39(3): 227-231 (5 pages)

97

The prevalence of work-related deaths associated with alcohol and drugs in

Victoria, Australia, 2001-6 Briohny McNeilly, Joseph Elias Ibrahim, lyndal

Tab 11

-

Bugeja, and Joan Ozanne-Smith, Injury Prevention 2010; 16(6}: 423-428 (7

pages)

The effectiveness of workplace drug prevention policies: Does 'zero tolerance'

Tab 12

Tab 13

work?

- Stephen L Mehay and Rosalie liccardo Pacula, NBER Digest 2000;

Working Paper No. 7383: 1-37 (37 pages)

Effectiveness and benefit-cost of peer-based workplace substance abuse

prevention coupled with random testing- Ted R. Miller, Eduard Zaloshnja, and

Rebecca S. Spicer, Accident Analysis & Prevention 2007; 39(3}: 565-573 (9

pages)

Results from the 2006 National Survey on Drug Use and Health: National

Tab 14

Tab 15

findings

pages)

-

Substance Abuse and Mental Health Services Administration (271

Cost of injury in the United States

:

A report to Congress 1989 Dorothy P.

Rice, Ellen J. Mackenzie and Associates, University of California and John

Hopkins University, 1989 (316 pages)

Independent Inquiry into Drug Testing at Work- Drug Testing in the Workplace

(102 Pages)

Tab 16

Tab 17

Tab 18

Tab 19

Social control through deterrence: Drinking-and-driving laws H. lawrence

Ross, Annual Review of Sociology 1984;10: 21-35 (16 pages)

Handle life with care; Prevent violence and negligence Hiroshi Nakajima,

World Health 1993; 46(1}: 3 (1pages)

Do drug-free workplace programs prevent occupational injuries? Evidence

from Washington State-Thomas M. Wickizer, Branko Gary Franklin,and Jetta

Joesch,HSR: Health Services Research 2004;39(1): 91-110 (20 pages)

Tab 20

Report No. 53 -Traffic law enforcement: A review of the literature Dominic

Zaal, Monash University Accident Research Centre,1994 (212 pages)

Documents for filing

a grievance (5 pages)

16.

17.

Human Rights Tribunals of Alberta - Bish v. Elk Valley Coal Corporation, 2012 AHRC 7 (42

pages)

Teck Coal limited Cardinal River TrainingHistory System for New Employee(3 pages)

18.

19.

SP

&

P

Title (5 pages)

Teck Coal limited- Course library for 2013-Current (3 pages)

Teck Coal limited CRO Contractor Site ecifi Orientation (4 pages)

Cardinal River Procedures- Visitor and Vendor Orientation (31pages)

20

21.

22

.

-

S

p

c

.

23. Shift Work and Fatigue- Working the Nightshift (10 pages

24. Teck Coal limited Safety Share- Jet lag-(4 pages)

25. What is Mental Illness? (10 pages)

)

26. How to get the sleep you need (3 pages)

2011-2014 HPIIncidents-Cardinal River Operation (5 pages)

27.

28.

March 2011 - A baggie of Crystal Meth was found on site at Cardinal River Operations (13

pages)

CRO Drug & Alcohol Summary

-Based On Site Testing log of February 4,2014 and CRO lab

29.

Positive Drug Testing and Alcohol 2005-2014 as of April16, 2015 (2 pages)

98

Teck CoalLimited Quarterly Review CRO- Q12012 (40 pages)

Teck CoalLimited Drug and Alcohol Testing April 2013 (14 pages)

Teck Coal Limited Field Level Risk Assessment (2 pages)

30.

31.

32.

33.

Drug/Alcohol Talk-Maintenance Dept. August 2004 ( page)

34. Workplace Health & Safety- Driver Involved In Truck Collision - Date of Incident: October

27,1999, Type of Incident: Fatal (21pages)

35. Cardinal River Coals Ltd. Alcohol and Drug Policy, October 23, 2000 (12 pages)

36. "Solutions at Work-Responding to Employee Substance Abuse"

Presented by Cardinal

River Coals Ltd. & The United Mine Workers of America, Local 1656, Facilitated by Kris

Robins Training & Consulting Services

Email from Carm Fiorillo of Monday, February 4, 2013 to Larson Lisa SPO -Subject: Drug

panel screening/confirmation (1page)

37.

38. Teck Coal Limited-2011High Potential Incidents (51pages)

Teck CoalLimited: Line Creek-July 22, 2010-Nov 1, 2012- DSS (21pages)

40. Managing Fatal Risk, March 16, 2014 by Miles Lorenz (7 pages)

39.

41.

42

ICMM Leadership Matters:The elimination of fatalities (6 pages)

ICMM Leadership Matters: Managing Fatal Risk Guidance (12 pages)

.

43. Safety Statistics for CRO for Past 20 Years (1page)

44. A. Teck Coal Limited Management Policy-No. 24

:

Alcohol Policy (6 pages)

B. Teck Coal Limited Management Policy-No. 25: Illegal Drug Policy (7 pages)

Teck Coal Limited Management Policy- No. 26: Medication Use Policy (7 pages)

c.

45. A. Statistics Drug Testing 2012 (2 pages)

B. Statistics Drug Testing 2013 (3 pages)

46. Curriculum Vitae of Scott Arthur Macdonald, dated January 10, 2013 (33 pages)

47. Submission on Re: UMAW v. Teck Coal Ltd.

Drug and Alcohol Policy Grievance

to

Nugent Law Office, February 21, 2014 by Scott Macdonald (35 pages)

48. Response to the Feb ih report by Leo Kadehjian and the Feb 21st report by Mace Beckson

By Scott Macdonald March 10, 2014 (5 pages)

49. Scott Macdonald References Vol.

Tab

Alberta Employment and Immigration fact sheet: Lost-time claim rate,

September 2008 (2 pages)

Tab 2

The Long Beach/Fort Lauderdale relative risk study-Richard D. Blomberg,

Raymond C. Peck,Herbert Moskowitz, Marcelline Burns, and Dary Fiorentino,

Journal of Safety Research 2009; 40: 285-292 (8 pages)

Age related differences in work injuries and permanent impairment:

comparison of workers' compensation claims among adolescents, young

adults, and adults Breslin, M Koehoorn, Smith, and M Manno, Occup

Environ Med 200; 60(e10): 1-6 (7 pages)

A

Tab 3

Tab 4

-

C

P

Experimental and quasi-experimental designs for research-Donald T.

Campbell and Julian C. Stanley from Handbook of Research on Training, Rand

McNally College Publishing Company: Chicago

Alternative specimens for workplace drug testing

A. Goldberger,Journal of Analytical Toxicology 2001; 25: 396-399 (4 pages)

,

1963 (44 pages)

Tab 5

Tab 6

-

Yale H. Caplan and Bruce

Workplace drug testing and worker drug use-Christopher

S

.

Carpenter, HSR:

Health Sciences Research 2007; 42(2): 795-810 (16 pages)

99

Tab

7

Urine drug concentrations: The scientific rationale for eliminating the use of

drug test levels in drug court proceedings- Paul L. Cary, National Drug Court

Institute Drug Court Practitioner Fact Sheet 2004; IV(1): 1-8 (8 pages)

Subjective and behavioral effects of marijuana the morning after smoking-L.

D. Chait, Psychopharmacology 1990; 100: 328-333 (6 pages)

Tab 8

Tab 9

Proficiency testing (external quality assessment) of drug detection in oral fluid

-Joe Clarke and John F. Wilson, Forensic Science lnternational2005; 150:

161-164 (4 pages)

Tab 10

Chapter

Drugs in the Workplace: The effects of psychoactive substances

on workplace performance- Robert B. Coambs and Mary Pat McAndrews

from Research Advances in Alcohol and Drug Problems, Volume II: Drug

testing in the workplace edited by Coambs, et al., Plenum Press: New York,

1994 (14 pages)

Tab 11

Tab 12

Cost-effectiveness of interventions to prevent alcohol-related disease and

injury in Australia- Linda Cobiac, Theo Vos, Christopher Doran, and Angela

Wallace, Addiction 2009; 104: 1646-1655 {10 pages)

legal, workplace, and treatment drug testing with alternate biological

matrices on a global scale-Edward J. Cone, Forensic Science International

2001; 121: 7-15 (9 pages)

Interpretation of oral fluid tests for drugs of abuse-Edward J. Cone and

Marilyn A. Huestis, Ann. N. Y. Acad. Sci. 2007; 1098: 51-103 (52 pages)

National Highway Traffic Safety Administration-Drugs and Human

Performance Fact Sheets (103 pages)

Tab 13

Tab 14

Tab 15

A critical evaluation of the Utah Power and Light Company's Substance Abuse

Management Program: Absenteeism, accidents and costs-Dennis J. Crouch,

Douglas 0. Webb, Paul F. Buller, and Douglas E. Rollins from In Drugs in the

Workplace: Research and evaluation data edited by Steven Gust and J.

Michael Walsh, 1989 (13 pages)

Tab 16

The involvement of drugs in drivers of motor vehicles killed in Australian road

traffic crashes-Olaf H. Drummer, Jim Gerostamoulos,Helen Batziris, Mark

Chu, John Caplehorn, Michael D. Robertson, and Philip Swann, Accident

Analysis and Prevention 2004; 36: 239-248 {10 pages)

Tab 17

Tab 18

Tab 19

Tab 20

Use of investigations in the diagnosis and management of alcohol use

disorders-Colin Drummond and Hamid Ghodse, Adv. Psychiatr. Treat. 1999;

5: 366-375 (11 pages)

The contribution of alcohol and other drugs among fatally injured drivers in

Quebec: Some preliminary results-C. Dussault, M. Brault, J. Bouchard, and A.

M. Lemire (9 pages)

The detection of illicit drugs in oral fluid: Another potential strategy to reduce

illicit drug-related harm-Kyle R. Dyer and Catherine Wilkinson, Drug and

Alcohol Review 2008; 27: 99-107 (9 pages)

Effectiveness of sobriety checkpoints for reducing alcohol-involved crashes-

Randy W. Elder, Ruth A. Shults, David A. Sleet, James L. Nichols, Stephanie

Zaza, and RobertS. Thompson,Traffic Injury Prevention 2002; 3(4): 266-274

(10 pages)

100

Tab 21

Tab 22

Risk of road accident associated with the use of drugs: A systematic review

and meta-analysis of evidence from epidemiological studies (article in press)-

Rune Elvik, Accident Analysis and Prevention 2012; xxx: xxx-xxx (14 pages)

Drug testing as a strategy to reduce occupational accidents: A longitudinal

analysis- Dale M. Feinauer and Stephen J. Havlovic,Journal of Safety

Research 1993; 24: 1-7 (7 pages)

Tab 23

Tab 24

Psychoactive substances and driving: State of the art and methodology-S. D.

Ferrara,

Chapter

R

.

Giorgett

i,and S. Zancaner (55 pages)

Alcohol, drugs, and workplace safety outcomes: A view from a

general model of employee substance use and productivity-Michael R.

Frone from The Psychology of Workplace Safety edited by Julian Barling and

Michael R. Frone, American Psychological Association: Washington (D.C.),

2004 (30 pages)

Tab 25

Prevalence and distribution of illicit drug use in the workforce and in the

workplace: Findings and implications from a U.S. national survey-Michael R.

Frone,Journal of Applied Psychology 2006; 91(4): 856-869 (14 pages)

Alcohol and illicit drug use in the workforce and workplace- Michael R. Frone,

American Psychological Association: Washington D. C., 2013 (284 pages)

Evaluation of drug testing in the workplace: Study of the construction industry

-Jonathan K. Gerber and GeorgeS. Yacoubian Jr.,Journal of Construction

Engineering and Management 2001: 438-444 (7 pages)

Tab 26

Tab 27

Tab 28

Drug testing and social control: Implications for state theory-Jurg Gerber

Eric L. Jensen,Myron Schrek,and Ginna M. Babcock,Contemporary Crises

1990; 14: 243-258 (16 pages)

Tab 29

Tab 30

Pharmacokinetics and pharmacodynamics of cannabinoids- Franjo

Grotenherman,Clin Pharmacokinet 2003; 42(4): 327-360 (34 pages)

Developing limits for driving under cannabis-Franjo Grotenhermen,Gero

Leson,Gunter Berghaus,Olaf H. Drummer,Hans-Peter Kruger,Marie Longo,

Herbert Moskowitz, Bud Perrine, Johannes G. Ramaekers, Alison Smiley, and

Rob Tunbridge, Addiction 2007; 102: 1910-1917 (9 pages)

Tab 31

Tab 32

Is cognitive functioning impaired in methamphetamine users? A critical

review-Carl L. Hart, Caroline B. Marvin, Rae Silver, and Edward E. Smith,

Neuropsychopharmacology 2012; 37: 586-608 (24 pages)

Cannabis dependence as a primary drug use-related problem: The case for

harm reduction-oriented treatment options-A. D. Hathaway, R. C. Callaghan,

S. Macdonald, and P.G. Erickson,Substance Use & Misuse 2009; 44: 990-1008

(19 pages)

Tab 33

Tab 34

Health Canada-Health Concerns: Canadian Alcohol and Drug Use Monitoring

Survey,Summary of Results for 2011(7 pages)

Acute and residual effects of marijuana profiles of plasma THC levels,

physiological, subjective, and performance measures-Stephen J. Heishman,

Marilyn A. Huestis, Jack E. Henningfield and Edward J. Cone, Pharmacology,

Biochemistry & Behavior 1990; 37: 561-565 (5 pages)

101

Employee drinking patterns and accidental injury: A stud of four New England

states* - Ralph W. Hingson, Ruth I. Lederman, and Diana Chapman Walsh,

Journal of Studies on Alcohol1985; 46{4): 298-303 {6 pages)

Tab 35

Drug use, workplace accidents and employee turnover-John Hoffmann and

Cindy Larison, Journal of Drug Issues 1999; 29{2): 341-364 {25 pages)

PRB 07-51E Drug testing in the workplace-Nancy Holmes and Karine Richer,

Law and Government Division, Parliament of Canada- dated 28 February

Tab 36

Tab 37

2008 {31pages}

_1:!.9

Estimating the time of last cannabis use from plasma

-

Tab 38

tetrahydrocannabinol and 11-nor- 9- carboxy- 1:!.⁹-tetrahydrocannabinol

concentrations-Marilyn A. Huestis, Allan Barnes, and Michael L. Smith,

Clinical Chemistry 2005; 51(12}: 2289-2295 (7 pages}

Tab 39

Tab 40

Drug testing in the trucking industry: The effect on highway safety- Mireille

Jacobson, Journal of Law and Economics 2003; XLVI: 131-156 {26 pages)

Ensuring validity in urine drug testing-William B. Jaffee, Elisa Trucco,

Christian Teter, Sharon Levy, and Roger D. Weiss, Psychiatric Services 2008;

59(2): 140-142 {3 pages}

Tab 41

Road Safety Web Publication No. 15-The relationship between blood alcohol

concentration (BAC) and breath alcohol concentration (BrAC): A review of the

evidence- Alan Wayne Jones,Department of Forensic Genetics and Forensic

Toxicology, National Board of Forensic Medicine, Linkoping, Sweden, 2010

[Web access: httQ:LLasset

s.dft.gov.ukLQubllcatlonsLresearch-and-statistical-

reQortsLreQort15 Qdf] {43 pages)

.

Drug testing did not reduce Southern Pacific's accident rate-James P. Jones,

Tab 42

Tab 43

Forensic Urine Drug Testing 1990: 2-4 {3 pages)

Chapter

Drug Testing Methods and Interpretations of Test Results-

Bhushan Kapur from Drug Testing in the Workplace: Research Advances in

Alcohol and Drug Problems, Volume 11 edited by Scott Macdonald and Paul

Roman, Plenum Press: New York, 1994 {10 pages)

The effects of certain drug-testing programs on injury reduction in the

Tab44

Tab 45

workplace: An evidence-based review-Jess F. Kraus, tnt

Health 2001; 7: 103-108 (6 pages}

J Occup Environ

Esctasy, driving and traffic safety-Kim P.C. Kuypers, Wendy M. Bosker and

Johannes G. Ramaekers from Drugs, Driving, and Traffic Safety edited by J. C.

Verster, S. R. Pandi-Perumal, J. G. Ramaekers, and J. J. de Gier, Birkhauser:

Boston, 2009 (18 pages}

A case-control study estimating accident risk for alcohol, medicines and illegal

drugs-Kim Paula Colette Kuypers,Sara-Ann Legrand, Johannes Gerardus

Ramaekers, and Alain Gaston Verstraete, PLoS ONE 2012; 7{8): e43496 {6

pages)

Tab 46

Tab 47

Worker Substance Use and Workplace Policies and Programs-Sharon L.

Larson, Joe Eyermsn, Misty S. Foster, Joseph C. Gfroerer, Substance Abuse

and Mental Health Services Administration: Rockville, 2007 {192 pages)

102

Marijuana, aging,and task difficulty effects on pilot performance

Leirer Jerome A. Yesavage,and Daniel G. Morrow, Aviation Space

Environmental Medicine 1989; 60{12):1145-1152 {8 pages)

Marijuana carry-over effects on aircraft pilot performance- Von 0. leirer,

-Von 0.

&

Tab 48

Tab49

Tab 50

,

Jerome A. Yesavage, and Daniel G. Morrow, Aviation Space,

Medicine 1991; 62: 221-227 (7 pages)

& Environmental

Alcohol violations and aviation accidents: Findings from the U.S. mandatory

alcohol testing program-Guohua li, Susan P. Baker,Yandong Qiang,George

W. Rebok

Medicine 2007

Scott Macdonald References Vol. 2

,

and Melissa

l.McCarthy,Aviation, Space, & Environmental

;

78(5): 510-513 (4 pages)

Tab 51

Drug violations and aviation accidents: Findings from the US mandatory drug

testing programs Guohua li, Susan P. Baker, Qi Shao, Joanne E. Brady,

-

Barbara H. Lang, George W. Rebok and Charles DiMaggio, Addiction 2011; 106:

1287-1292 (6 pages)

Tab 52

The prevalence of alcohol, cannabinoids, benzodiazepines and stimulants

among injured drivers and their role in driver culpability

- Part 1: The

prevalence of drug use in drivers, and characteristics of the drug-positive

group- Marie C. Lango, Christine E. Hunter, Robert J. Lokan, Jason M. White,

and Michael A. White, Accident Analysis

& Prevention 2000; 32: 613-622 (10

pages)

Tab 53

The prevalence of alcohol, cannabinoids, benzodiazepines and stimulants

amongst injured drivers and their role in driver culpability Part II: The

relationship between drug prevalence and drug concentration, and driver

culpability Marie C. Longo, Christine E. Hunter, Robert J. lokan, Jason M.

-

White, and Michael A. White, Accident Analysis

& Prevention 2000; 32: 623-

632 {10 pages)

Tab 54

Tab 55

Urine drug testing: Approaches to screening and confirmation testing-Gifford

Lum and Barry Mushlin, Laboratory Medicine 2004;35(6): 368-373 {6 pages)

Chapter 6

The impact and effectiveness of drug testing programs in the

workplace from Drug Testing in the Workplace: Research Advances in Alcohol

and Drug Problems, Volume 11 edited by Scott Macdonald and Paul Roman,

Plenum Press: New York,1994 (14 pages)

Tab 56

Tab57

Tab 58

The role of drugs in workplace injuries: Is drug testing appropriate? -Scott

Macdonald,Journal of Drug Issues 1995; 25(4): 703-722 {20 pages)

Work-place alcohol and other drug testing: A review of the scientific evidence

-Scott Macdonald, Drug and Alcohol Review 1997; 16(3): 251-259 (10 pages)

Testing for cannabis in the work-place: A review of the evidence

Scott

Macdonald, Wayne Hall, Paul Roman, Tim Stockwell, Michelle Coghlan and

Sverre Nesvagg,Addiction 2009;105: 408-416 {9 pages)

Tab 59

Comparative evaluation of the accuracy of benzodiazepine testing in chronic

pain patients utilizing immunoassay with liquid chromatography tandem mass

spectrometry (LC/MS/MS) of urine drug testing

- Laxmaiah Manchikanti,

Yogesh Malia, Bradley W. Wargo, and Bert Fellows, Pain Physician 2011; 14:

259-270 (12 pages)

103

Tab 60

Prevalence of drugs of abuse in urine of drivers involved in road accidents in

France: A collaborative study P. Marquet, P. A. Delpla, S. Kerguelen, J.

Bremond, F. Facy, M. Garnier, B. Guery, M. Lhermitte, D. Mathe, A. L. Pelissier,

-

C. Renaudeau, P. Vest, and J. P. Seguela,

pages)

J Forensic Sci 1998; 43{4): 806-811 {6

Tab 61

Tab 62

Chapter 12

Behavioral Pharmacology

Englewood Cliffs, 1986 {55 pages)

The Opiates from Drugs and Behavior: An Introduction to

by

edited

William

A. McKim, Prentice-Hall:

Effectiveness and benefit-cost of peer-based workplace substance abuse

prevention coupled with random testing-Ted R. Miller, Eduard Zaloshnja, and

Rebecca S. Spicer, Accident Analysis & Prevention 2007; 39: 565-573 {9 pages)

Urine drug screening: Practical guide for clinicians Karen E. Moeller, Kelly C.

Lee, and Julie C. Kissack, Mayo Cfin Proc. 2008; 83{1): 66-76 {12 pages)

Tab 63

Tab 64

Does post-accident drug testing reduce injuries? Evidence from a large retail

chain

Review 2008; 10{2): 246-302 {57 pages)

Chapter 23 Ecological Studies from Modern Epidemiology, Second Edition

by Kenneth J.

-Alison D. Morantz and Alexandre Mas, American Law and Economics

Tab 65

Tab 66

edited

Rothman and Sander Greenland, Lippincott-Raven:

Philadelphia, 1998 {23 pages)

Psychoactive substance use and the risk of motor vehicle accidents

K.L.L.

Movig, M.P.M. Mathijssen, P.H.A. Nagel, T. van Egmond, J.J. de Gier, H.G.M.

Leufkens, and A.C.G. Egberts, Accident Analysis & Prevention 2004; 36: 631-636

{6 pages)

Tab 67

Tab 68

Tab 69

Prevalence of alcohol and other drug use on the job: Cause for concern or

irrational hysteria?

-Michael D. Newcomb, The Journal of Drug Issues 1994;

24{3): 403-416 {8 pages)

An evaluation of preemployment drug testing-Jacques Normand, Stephen D.

Salyards, and John J. Mahoney, Journal on Applied Psychology 1990, 73{6}:

629-639 {1

Chapter 6

1

pages)

Detecting and assessing alcohol and other drug use in Under the

Influence? Drugs and the American Work Force edited by Jacques Normand,

Richard 0. Lempert,

and Charles P. O'Brien, National Academy Press:

Washington (D.C.),1994 {5 pages)

Tab 70

Relationships between urinalysis testing

for substance use, medical

expenditures and the occurrence of injuries at a large manufacturing firm

Ronald J. Ozminkiwski,Tami L. Mark, J. Michael Walsh, and Leo Cangianelli, The

American Journal of Drug and Alcohol Abuse 2003; 29{1): 151-167 {18 pages)

Drug Testing Index, 2012-Quest Diagnostics (9 pages)

-

Tab 71

Tab 72

Dose related risk of motor vehicle crashes after cannabis use-J.G. Ramaekers,

G. Berghaus, M. van Laar, O.H. Drummer, Drug and Alcohol Dependence 2004;

74: 109-119 {11pages)

Tab 73

Tab 74

Effects of elevating blood alcohol levels on tasks related to dart throwing- T.

Reilly and J. Scott, Perceptual and Motor Skills 1993; 77: 25-26 (2 pages)

Exhibit tab is a book, but was not included.

104

Tab 75

Tab 76

The effectiveness of preemployment drug screening in the prediction of

employment outcome -James Ryan, Craig Zwerling, and Michael Jones, JOM

1992; 34(11): 1057-1063 (8 Pages)

Substance use and occupational injuries among high school students in South

Texas

Baumler, and Nancy F. Weller

2005; 31: 253-265 (14 pages)

-

Eva M. Shipp, Susan

R. Tortolero, Sharon P. Cooper, Elizabeth G.

,

The American Journal of Drug and Alcohol Abuse

Tab 77

Reviews of evidence regarding interventions to reduce alcohol-impaired

driving-Ruth A. Shultz, Randy W. Elder, David A. Sleet, James L. Nichols, Mary

0. Alao, Vilma G. Carande-Kulis, Stephanie Zaza, Daniel M. Sosin, Robert

S.

Thompson, and the Task Force on Community Preventive Services, Am J Prev

Med 2001; 21(4S): 66-88 (23 pages)

Tab 78

Tab 79

Worker substance use, workplace problems and the risk of occupational injury:

A matched case-control study- Rebecca S. Spicer,Ted R. Miller, and Gordon S.

Smith,

Urine drug screening: A valuable office procedure

Stephen M. Adam and Alexander Zotos, American Family Physician 2010;

81(5): 635-640 (95 pages)

J Stud Alcohol2003; 64: 570-578 (9 pages)

John B. Standridge,

s,

P.

Tab 80

Tab 81

Tab 82

Results of the drug testing program at Southern Pacific Railroad Robert W.

Taggart, NIDA Res Monogr. 1989; 91: 97-108 (6 pages)

Detection times of drugs of abuse in blood, urine, and oral fluid

Verstraete, Ther Drug Manit 2004 26(2): 200-205 (6 pages)

Cannabis use, cognitive performance and mood in sample of workers

Psychopharmacol 2006;

Alain G.

;

a

E.J.K.

Wadsworth, S.C. Moss, S.A. Simpson and A.P. Smith,

20(1): 14-23 (11pages)

J

Tab83

Tab 84

New technology and new in tiatives in U.S. workplace testing- J. Michael Walsh,

Forensic Science lnternational2008; 174: 120-124 (5 pages)

Do drug-free workplace programs prevent occupations injuries? Evidence from

Washington State- Thomas M. Wickizer, Branko Kopjar, Gary Franklin, and Jutta

Joesch, HSR: Health Services Research 2004;39{1): 91-110 {20 pages)

Tab 85

Tab 86

A review of biological indicators of illicit drug use, practical considerations and

clinical usefulness

- K. Wolff, M. Farrell, J. Marsden, M. G. Monteiro, R. Ali, S.

Welch and J. Strang -Addiction 1990;94{9): 1279-1298 (20 pages)

Alcohol, illicit and non-illicit psychoactive drug use and road traffic injury in

Thailand

S. Rattanasiri, P. Chatchaipun, K. Wattayakorn, and T. Anukarahanonta, Accident

Analysis Prevention 2009; 41(3): 651-657 {7 pages)

The efficacy of preemployment drug screening for marijuana and cocaine in

predicting employment outcome Craig Zwerling, James Ryan, and Endel John

: A case-control study-P. Woratanarat, A. lngsathit, P. Suriyawongpaisal,

&

Tab 87

Tab 88

Tab89

-

Orav,JAMA 1990; 264{20): 2639-2643 (5 pages)

Evaluation of the drug evaluation and classification program: A critical review of

the evidence- Douglas J. Bairness, Jacques LeCavalier, and Deanna Singhal, Traffic

Injury Prevention 2007;8(4): 368-376 {10 pages)

The detection of illicit drugs in oral fluid: Another potential strategy to reduce

illicit drug-related harm -Kyle R. Dyer and Catherine Wilkinson, Drug and Alcohol

Review 2008;27: 99-107 (9 pages)

105

Variations of alcohol impairment in different types, causes and contexts of

injuries: Results of emergency room studies from 16 countries- Scott Macdonald,

Cheryl J. Cherpitel, Amanda Desouza, Tim Stockwell, Guiljerme Borges, and

Norman Giesbrecht,Accident Analysis & Prevention 2006; 38: 1107-1112 (6 pages)

Toward a more parsimonious approach to drug recognition expert evaluations

Amy J. Porath-Waller, Douglas J. Beirness, and Erin E. Beasley, Traffic Injury

Tab 90

Tab 91

Prevention 2009;10(6): 513-518 (7 pages)

50. Dr. Beckson's References Supplemental Vol. 1&

2

Lowering blood alcohol content saves lives:the European experience-Daniel

Albalate, Policy Anal Manag 2008; 27: 20-39 (20 pages)

Tab

J

Plasma and urine profiles of t.9 -tetrahydrocannabinol and its metabolites 11-

hydroxy-t.9-tetrahydrocannabinol and 11-nor-9-carboxy-t.9-tetrahydrocannabinol

after cannabis smoking by male volunteers to estimate recent consumption by

Tab 2

athletes-Rudolf Brenneisen, Pascale Meyer, Haithem Chtioui, Martial Saugy, Mathias

Kamber,Anal Bioanal Chem 2010; 396: 2493-2502 (10 pages)

Prevalence of alcohol and other drugs in fatally injured drivers-Joanne E. Bradyand

Guohua Li,Addiction 2013;108(1): 104-114 (11pages)

Tab 3

Tab 4

Effectiveness of mandatory alcohol testing programs in reducing alcohol involvement

in fatal motor carrier crashes-Joanne E. Brady,Susan P. Baker, Charles DiMaggio,

Melissa L. McCarthy, George W. Rebok, Guohua Li, Am J Epidemiol2009; 1770: 775-

782 (8 pages)

Alcohol and drug screening of occupational drivers for preventing injury (Review)-

Clodagh M. Cashman,Jani H. Ruotsalainen, Birgit A. Greiner, Paul V. Berine,Jas H.

Verbeck,Cochrane Database of Systematic Reviews 2009; 2: 1-21(23 pages)

Hangover' effects the morning after marijuana smoking-L. D. Chait, Marian W.

Fischman, Charles R. Schuster,Drug and Alcohol Dependence 1985; 15: 229-238 (10

pages)

Tab 5

Tab 6

Subjective and behavioral effects of marijuana the morning after smoking-L.

Chait,Psychopharmacology 1990;100: 328-333 (6 pages)

D.

Tab

7

The 2012 Federal Legislative Review-Professors Erika Chamberlain & Robert

Tab 8

Solomon, Faculty of Law, University of Western Ontario,January 2012 {104 pages)

Tab 9 National Highway Traffic Safety Administration: Drugs and Human Performance Fact

Sheets-U.S. Department of Transportation, Report No. DOT HS 809 725 (104 pages)

Tab10 Effects of cannabis on neurocognitive functioning: Recent advances,

neurodevelopmental influences, and sex differences-Natania A. Crane, Randi

Melissa Schuster,Paolo Fusar-Poli, Raul Gonzalez,Neuropsychol Rev 2013;23:117-

137 {21pages)

Effects of benzodiazepines, antidepressants and opioids on driving: A systematic

review and meta-analysis of epidemiological and experimental evidence-Tharaka

Dassanayake, Patricia Michie, Gregory Carter,Alison Jones, Drug Saf 2011;34(2): 125-

Tab11

Tab 12

156 (32 pages)

Urinary cannabinoid disposition in occasional and frequent smokers: Is THC-

glucuronide in sequential urine samples a marker of recent use in frequent smokers?

-Nathalie A. Desrosiers, Dayong Lee, Marta Concheiro-Guisan, Karl B. Scheidweiler,

David A. Gorelick, Marilyn

pages)

A. Huestis,Clinical Chemistry 2014;60(2): 361-372 (12

106

Presentation 8 Summary from the experience in Victoria, AUS- Olaf Drummer,

Department of Forensic Medicine, Monash University (3 pages)

Tab 13

Tab 14

The contribution of alcohol and other drugs among fatally injured drivers in Quebec:

Some preliminary results

Canada (10 pages)

- C. Dussault, Maxime Brault, J. Bouchard and A.M. Lemire,

Random breath testing in Queensland and Western Australia: Examination of how the

random breath testing rate influences alcohol related traffic crash rates-Jason Ferris,

Lorraine Mazerolle, Mark King, Lyndel Bates, Sarah Bennett, Madonna Devaney,

Accident Analysis and Prevention 2013; 60: 181-188 (8 pages)

Tab 15

Tab 16

Prevalence and distribution of illicit drug use in the workforce and in the workplace

:

Findings and implications from a U.S. national survey-Michael R. Frane,Journal of

Applied Psychology 2006;91(4): 856-869 (14 pages)

Tab 17 Workplace substance use climate: Prevalence and distribution in the U.S. workforce-

Michael R. Frane,Journal of Substance Use 2012 17(1): 72-83 (13 pages)

;

Tab 18 Acute and residual effects of marijuana: Profiles of plasma THC levels, physiological,

subjective,and performance measures-Stephen J. Heishman, Marilyn A. Huestis,

Jack E. Henningfield, Edward J. Cone,Pharmacology Biochemistry & Behaviour 1990;

37: 561-565 (5 pages)

The environment and disease: Association or causation?-Sir Austin Bradford Hill,

Bulletin of the World Health Organization 2005 83{10): 295-300 (3 pages)

Tab19

;

Tab 20 Hangover predicts residual alcohol effects on psychomotor vigilance the morning

after intoxication-Jonathan Howland, Damaris J. Rohsenow, Caleb A. Bliss, Alissa B.

Almeida, Tamara Vehige Calise, Timothy Heeren, Michael Winter,Journal of Addition

Research & Therapy 2010;1(1): 101(5 pages)

Cannabis in sport: Anti-doping perspective

-Marilyn A. Huestis,Irene Mazzoni, Oliver

Tab 21

Rabin,Sports Med 2011 41(11): 949-966 (18 pages)

;

Detection times of marijuana metabolites in urine by immunoassay and GC-MS-

Marilyn A. Huestis,John M. Mitchell, Edward J. Cone, Journal of Analytical Toxicology

1995; 19: 443-449 (7 pages)

Tab 22

Urinary excretion profiles of 11-nor-9-carboxy- 9-tetrahydrocannabinol in humans

after single smoked doses of marijuana-Marilyn A. Huestis,John M. Mitchell, Edward

J. Cone, Journal of Analytical Toxicology 1996; 20: 441-451(12 pages)

Tab 23

Tab 24 Drug testing in the trucking industry: The effect on highway safety* - Mireille

Jacobson,Journal of Law Economics 2003 XLVI: 131-156 (26 pages)

Tab 25 Preventing cannabis users from driving under the influence of cannabis- Craig Jones,

Neil Donnelly, Wendy Swift, Don Weatherbrun, Accident Analysis and Prevention

2006;38: 854-861(8 pages)

Tab 26 Ecstasy, driving and traffic safety

-

Kim P. C. Kuypers, Wendy M. Bosker, and Johannes

G. Ramaekers, Drugs, Driving and Traffic Safety 2009; 501-518 (18 pages)

Tab 27 Worker substance use and workplace policies and programs-Sharon L. Larson et al.,

Substance Abuse and Mental Health Services Administration Office of the Applied

Studies 2007;6-8 (3 pages)

Tab 28 The effectiveness of interventions for preventing injuries in the construction industry:

A systematic review (article in press)-Marika M. Lehtola, Henk F. van der Molen,

Jorma Lappalainen

,

Peter L. T. Hoonakker,Hongwei Hsiao, Roger A. Haslam,Andrew

Prev Med 2008; xx(x): 1-9 (9 pages)

R. Hale Jos H. Verbeek,Am

,

J

107

Tab 29 Marijuana carry-over effects on aircraft pilot performance-Von 0. Leirer, Jerome A.

Yesavage, and Daniel G. Morrow, Aviat. Space Environ. Med. 1991; 62: 221-227 (7

pages)

Tab 30 Alcohol violations and aviation accidents: Finding from the U.S. Mandatory Alcohol

Testing Program-Guohua Li,Susan P. Baker, Yandong Qiang, George W. Rebok, and

Melissa L. McCarthy, Aviat. Space Environ. Med. 2007; 78(5): 510-513 (4 pages)

Tab 31 Chapter 27-Drug and alcohol testing-David G. Lukcso from Occupational health

services: A practical approach, 2"ded. by Guidotti,et al., Routledge: New York, 2013

(16 pages)

Tab 32 Cognitive consequences of cannabis use: Comparison with abuse of stimulants and

heroin with regard to attention, memory and executive functions-Thomson

Lundqvist, Pharmacology, Biochemistry and Behavior 2005; 81: 319-330 (12 pages)

Tab 33 Injury associated with cannabis and cocaine use-Scott Macdonald,Kristin Anglin-

Bodrug, Robert E. Mann, Patricia Erickson, Andrew Hathaway, Mary Chipman, and

Margaret Rylett, Drug and Alcohol Dependence 2003; 72: 99-115 (17 pages)

Tab 34 Testing for cannabis in the work-place: A review of the evidence-Scott Macdonald,

Wayne Hall, Paul Roman, Tim Stockwell, Michelle Coghlan, and Sverre Nesvaag,

Addiction 2010; 105: 408-416 (5 pages)

Tab 35 The impact of alcohol-related collisions of the partial decriminalization of impaired

driving in British Columbia, Canada-Scott Macdonald, Jinhui Zhao, Gina Martin,Jeff

Brubacher, Tim Stockwell, Neil Arason, Susanne Steinmetz, and Herbert Chan,

Accident Analysis and Prevention 2013; 59: 200-205 (6 pages)

Tab 36 A review of alcohol-impaired driving: The role of blood alcohol concentration and

complexity of the driving task-Teri L. Martin,Patricia A. M. Solbeck, Daryl J. Meyers,

Robert M. Langille, Yvona Buczek, and Marc R. Pelletier,

1238-1250 (13 pages)

J Forensic Sci 2013; 58(5):

Tab 37 The effectiveness of workplace drug prevention policies: Does 'zero tolerance' work?

-Stephen L. Mehay and Rosalie Liccardo Pacula, National Bureau of Economic

Research 1999; Working Paper 7383: 1-37 (37 pages)

Tab 38 Injury risk among medically identified alcohol and drug abusers-Ted R. Miller, Diane

C. Lestina, and Gordon S. Smith, Alcoholism: Clinical and Experimental Research 2001;

25(1): 54-59 (6 pages)

Tab 39 Effectiveness and benefit-cost of peer-based workplace substance abuse prevention

coupled with random testing-Ted R. Miller, Eduard Zaloshnja, and Rebecca S. Spicer,

Accident Analysis and Prevention 2007; 39: 565-573 (9 pages)

Tab40 Alcohol, age, and piloting: Judgment, mood, and actual performance- Daniel

Morrow, Von Leirer, Jerome Yesavage, and Jared Tinklenberg, The International

Journal of the Addictions 1991; 26(6): 669-683 (15 pages)

Tab 41 Psychoactive drugs and pilot performance:

A

comparison of nicotine, donepezil, and

Yesavage,Joy L. Taylor, Ruth

alcohol effects MartinS. Mumenthaler,Jerome

-

A

O'Hara, Leah Friedman, Hana Lee,and Helena C. Kraemer, Neuropsychopharmacology

2003; 28: 1366-1373 (8 pages)

Tab 42 Effects of alcohol and other drugs on driver performance-E. J. D. Ogden and H.

Moskowitz,Traffic Injury Prevention 2004; 5: 185-198 (14 pages)

Tab 43 Operator error and system deficiencies: Analysis of 508 mining incidents and

accidents from Queensland, Australia using HFACS- Jessica M. Patterson and Scott A.

Shappell, Accident Analysis and Prevention 2010; 42: 1379-1385 (7 pages)

108

Executive summary, pages 11-12 (2 pages)

Overall conclusion, pages 126-129 (4 pages)

Tab 44

Tab 45 Dose related risk of motor vehicle crashes after cannabis use-J. G. Ramaekers, G.

Berghas, M. van Laar,0. H. Drummer, Drug and Alcohol Dependance 2004; 73: 109-

119 (11 pages)

A study by the RAND Institute for Civil Justice and RAND Health: The effects of

substance use on workplace injuries-Rajeev Ramchand, Amanda Pomeroy, and

Jeremy Arkes, i-ix and 1-43 (54 pages)

Tab 46

Tab 47 The mirage of impairing drug concentration thresholds:

A rationale for zero tolerance

per se driving under the influence of drugs laws-Gary M. Reis field, Bruce A.

Goldberger, MarkS. Gold, and Robert L. DuPont,Journal of Analytical Toxicology

2012; 35: 353-356 (4 pages)

Tab 48 Judging intoxication-Steve Rubenzer, Behav. Sci. Law 2011; 29: 116-137 (22 pages)

Random alcohol testing reduced alcohol-involved fatal crashes of drivers of large

trucks-Cecelia B. Snowden, Ted R. Miller,Geetha M. Waehrer, and Rebecca S. Spicer,

Journal of Studies on Alcohol and Drugs 2007: 634-640 (7 pages)

Tab 49

Tab 50

Tab 51

Tab 52

Tab 53

Tab 54

Impact of a workplace peer-focused substance abuse prevention and early

intervention program-Rebecca S. Spicer and Ted R. Miller,Alcoholism: Clinical and

Empirical Research 2005; 29(4): 609-611(3 pages)

A field study of haul truck operations in open pit mines-Patrick Stahl, Birsen

Donmez, Greg Jamieson, Proceedings of the Human Factors and Ergonomics Society

55th Annual Meeting 2011: 1845-1849 (5 pages)

Neural systems for error monitoring: Recent findings and theoretical perspectives-

Stephan F. Taylor, Emily R. Stern, and William J. Gehring, The Neuroscientist 2007;

13(2): 160-172 (13 pages)

Haulage truck dump site safety: An examination of reported injuries-Fred C. Turin,

William J. Wiehagen,Jasinder S. Jaspal, and Alan G. Mayton,Information Circular

2001; 9454: 1-23 (29 pages)

Detection times of drugs of abuse in blood, urine, and oral fluid-Alain G. Verstraete,

Ther Drug Monit 2004; 26(2): 200-205 (6 pages)

Tab 55 Do drug-free workplace programs prevent occupational injuries? Evidence from

Washington State Thomas M. Wickizer, Branko Kopjar, Gary Franklin, and Jutta

-

Joesch, HSR: Health Services Research 2004; 39(1): 91-110 (10 pages)

Carry-over effects of marijuana intoxication on aircraft pilot performance:

A

Tab 56

preliminary report-Jerome A. Yesavage, Von Otto Leirer, Lt. Cdr. Mark Denari, and

Leo E. Hollister,Am Psychiatry 1985; 142(11): 1325-1329 (5 pages)

Tab 57 The efficacy of preemployment drug screening for marijuana and cocaine in predicting

employment outcome Craig Zwerling, James Ryan and Endel John Orav,lAMA 1990;

J

-

,

264(20): 2639-2643 (5 pages)

51. Teck Coal Limited-Additional Articles

Tab

In-Depth Review: Occupational safety risk management in Australian mining

J. Joy,

Occupational Medicine 2004; 54: 311-315 (5 pages)

British Columbia Ministry of Justice: Driving While Affected by Drugs or Alcohol (4

pages)

Tab 2

Wikipedia, the free encyclopedia: Blood alcohol content (4 pages)

Areas of Expertise-Dr. Beckson (10 pages)

Tab 3

Tab

4

109

National Highway Traffic Safety Administration: Drugs and Human Performance Fact

Sheets (100 pages)

Tab 5

Tab 6

Interventions for preventing injuries in the construction industry (Review) -van der

Molen HF, Lehtola MM, Lappalainen J, Hoonakker PLT, Hsiao H, Haslam R, Hale AR,

Verbeek J, Cochrane Database of Systematic Reviews 2007; 4: Article No.: CD006251

(22 pages)

Analysis of injury events with fuzzy cognitive maps

Maurizio Bevilacqua, Filippo

Tab

7

Emanuele Ciarapica, Giovanni Maruzo, Journal of Loss Prevention in the Process

Industries 2012;25: 677-685 (9 pages)

The intervention research process in occupational safety and health: An overview

from the National Occupational Research Agenda Intervention Effectiveness Research

Tab 8

Team

-

Linda M. Goldenhar, Anthony D. LaMontagne, Theodore Katz, Catherine

Heaney

,

Paul Landsbergis, Journal of Occupational and Environmental Medicine 2001;

43: 616-622 (7 pages)

Tab 9 Alcohol, Drugs, and Workplace Safety Outcomes: A View from a General Model of

Employee Substance Use and Productivity Michael R. Frone (30 pages)

Safety in Mines Research Advisory- Final Report: Investigate the causes of transport

and tramming accidents on coal mines AM Rushworth, CF Talbot International

-

Tab10

,

-

(

Mining Consultants, IMC) and FH von Glehn, RM Lomas (Bluhm Burton Engineering,

BBE) (121pages)

Tab11 Intervention Studies in Occupational Epidemiology

T.S. Kristensen, Journal of

Occupational and Environmental Medicine 2005 62: 205-210 (6 pages)

;

Tab 12 Drug testing in the work place The Report of the Independent Inquiry into Drug

Testing at Work-Report prepared by Marcus Roberts (102 pages)

Tab 13 Cannabis use is quantitatively associated with nucleus accumbens and amygdala

abnormalities in young adult recreational users-Jodi M. Gilman,John K. Kuster, Sang

Lee, Myung Joo Lee, Byoung Woo Kim, Nikos Makris, Andre van der Kouwe, Anne J.

Blood,Hans C. Breiter,Journal of Neuroscience 2014;34(16): 5529-5538

52.

Tab

Submission to the Society of Energy Professionals and the Power Workers' Union

Comment on the Canadian Nuclear Safety Commission discussion paper-Fitness for

duty: Proposals for strengthening alcohol and drug policy, programs,and testing-

Scott Macdonald, 2012 (27 pages)

Tab 2 The role of substance use and psychosocial characteristics in explaining unintentional

injuries-Michelle Coghlan and Scott Macdonald, Accident Analysis and Prevention

2010;42: 476-479 (4 pages)

Chapter

Cannabis use and driving:Implications for public health and transport

Tab 3

policy-Robert E. Mann, Gina Stoduto, Scott Macdonald, and Bruna Brands from

EMCODA {2008}, A cannabis reader: Global issues and local experiences, Monograph

series 8, Volume 2 edited by Sharon Rodner Sznitman, Borje Olsson,and Robin Room,

European Monitoring Centre for Drugs and Drug Addiction: Lisbon, 2008 (26 pages)

Tab

4

Driving behavior under the influence of cannabis or cocaine-Scott Macdonald,

Mann, M. Chipman, B. Pakula, P. Erickson,A. Hathaway,and P. Macintyre, Traffic

Injury Prevention 2008; 9: 190-194 (6 pages)

R.

Multicentre study of acute alcohol use and non-fatal injuries: Data from the WHO

collaborative study on alcohol and injuries-Guilherme Borges,Cheryl Cherpitel,

Ricardo Orozco,Jason Bond, Yu Ye, Scott Macdonald, Jurgen Rehm, and Vladimir

Poznyak, Bulletin of the World Health Organization 2006;84(6): 453-460 (8 pages)

Tab 5

110

Driving behavior of alcohol, cannabis, and cocaine abuse treatment clients and

Scott Macdonald, Amanda DeSouza, Robert Mann, and Mary

Tab 6

population controls

-

Chipman, The American Journal of Drug and Alcohol Abuse 2004; 30(2): 429-444 (16

pages)

Collisions and traffic violationsof alcohol, cannabis and cocaine abuse clients before

Tab

7

and after treatment-Scott Macdonald,Robert E. Mann, Mary Chipman, and Kristin

Anglin-Bodrug, Accident Analysis & Prevention 2004; 36: 795-800 (6 pages)

Review: Drugs and traffic collisions- Evelyn Vingilis and Scott Macdonald,Traffic

Injury Prevention 2002; 3: 1-11(11pages)

Tab 8

Tab 9

The limitations of drug screening in the workplace-Scott Macdonald, Samantha

Wells,and Richard Fry,International Labour Review 1993; 132(1): 95-113 (19 pages)

Tab 10 The effects of introducing or lowering legal per se blood alcohol limits for driving: An

international review- Robert E. Mann, Scott Macdonald, Gina Stoduto, Susan Bondy,

Brian Jonah, and Abdul Shaikh, Accident Analysis & Prevention 2001; 33: 569-583 (15

pages)

The impact of alcohol-related collisions of the partial decriminalization of impaired

Tab 11

driving in British Columbia,Canada-Scott Macdonald, Jinhui Zhao,Gina Martin,Jeff

Brubacher, Tim Stockwell, Neil Arason, Susanne Steinmetz, and Herbert Chan,

Accident Analysis & Prevention 2013; 59: 200-205 (6 pages)

Tab 12 Testing for cannabis in the work-place: A review of the evidence-Scott Macdoanld,

Wayne Hall, Paul Roman, Tim Stockwell, Michelle Coghlan, and Sverre Nesvaag,

Addiction 2010; 105: 408-416 (9 pages)

Tab 13 Review: Injury risk associated with cannabis and cocaine use-Scott Macdonald,

Kristin Anglin-Bodrug, Robert E. Mann, Patricia Erickson, Andrew Hathaway, Mary

Chipman, and Margaret Rylett, Drug and Alcohol Dependence 2003; 72: 99-115 (17

pages)

53. Comment on Dr. Scott Macdonald's report to NUGENT Law Office ("Re UMWA v. Teck Coal Ltd

.

-Drug and Alcohol Policy Grievance")-Guohua Li,2014 (14 pages)

54.

Tab

1

Acute cannabis consumption and motor vehicle collision risk: Systematic review of

observational studies and meta-analysis-Mark Asbridge, Jill A. Hayden, and Jennifer

L. Cartwright, BMJ 2012; 344: e536 (9 pages)

Tab 2 Cannabis and traffic collision risk: findings from a case-crossover study of injured

drivers presenting to emergency departments- Mark Asbridge, Robert Mann,

Michael D. Cusimano, Cynthia Trayling, Michael Roerecke, John M. Tallon, Alyce

Whipp, and Jurgen Rehm, tnt J Public Health 2014; 59: 395-404 (10 pages)

A roadside survey of alcohol and drug use among drivers in British Columbia- Douglas

J. Beirness and Erin E. Beasley,Traffic Injury Prevention 2010 11: 215-221(8 pages)

Effectiveness of mandatory alcohol testing programs in reducing alcohol involvement

in fatal motor carrier crashes-John Brady, Susan P. Baker, Charles DiMaggio,

Tab 3

;

Tab

4

E

.

Melissa L. McCarthy, George W. Rebok,and Guohua Li, American Journal of

Epidemiology 2009; 170(6): 775-782 (8 pages)

Prevalence of alcohol and other drugs in fatally injured drivers-Joanne E. Brady and

Guohua Li, Addiction 2012; 108: 104-114 (11pages)

Tab 5

Tab 6

Alcohol- or drug-use disorders and motor vehicle accident mortality:

A retrospective

cohort study Russell C. Callaghan, Jodi M. Gatley, Scott Veldhuizen, Shaul Lev-Ran,

-

Robert Mann, and Mark Asbridge-Accident Analysis & Prevention 2013; 53: 149-153

(7 pages)

111

Tab

7

Workplace drug testing and worker drug use-Christopher S. Carpenter, HSR: Health

Services Research 2007; 42(2): 795-810 (16 pages)

Ten great public health achievements- United States, 1900-1999- Centre for Disease

Control and Prevention, Morbidity and Mortality Weekly Report 1999; 48(12): 241-264

(24 pages)

Tab 8

Tab 9

Centre for Disease Control and Prevention,Morbidity and Mortality Weekly Report

2011; 60(19): 605-643 (40 pages)

Tab 10 Cost-effectiveness of interventions to prevent alcohol-related disease and injury in

Austral a-Linda Cobiac, Thea Vas,Christopher Doran and Angela Wallave, Addiction

i

2009; 104: 1646-1655 (11 pages)

Tab 11 Cannabis effects on driving skills-Rebecca L. Hartman and Marilyn A. Huestis, Clinical

Chemistry 2013; 59(3): 478-492 (15 pages)

Tab 12 The environment and disease: Association or causation?-Sir Austin Bradford Hill,

Bulletin of the World Health Organization 2005; 83(10): 796-798 (3 pages)

Tab 13 Drug testing in the trucking industry: The effect on highway safety-Mireille Jacobson

Journal of Law and Economics 2003; 46(1): 131-157 (27 pages)

Alcohol and drug consumption by Quebec truck drivers-A-M. Lemire, M. Montegiani

and C. Dussault, Societe de !'assurance automobile du Quebec (SAAQ),2001 (6 pages)

Tab 14

Tab 15 Alcohol violations and aviation accidents: Findings from the

U.S. mandatory alcohol

testing program-Guohua Li,Susan P. Baker, Yandong Qiang, George W. Rebok, and

Melissa L. McCarthy, Aviation, Space, and Environment Medicine 2007; 78(5): 510-513

(4 pages)

Tab 16 Validity of suspect alcohol and drug violations in aviation employees-Guohua Li,

Joanne E. Brady, Charles DiMaggio,Susan P. Baker and George W. Rebok, Addiction

2010; 105: 1771-1775 (6 pages)

Tab 17 Drug violations and aviation accidents: Findings from the US mandatory drug testing

programs- Guohua Li,Joanne E. Brady, Charles DiMaggio, Susan P. Baker and George

W. Rebok, Addiction 2011; 106: 1287-1292 (6 pages)

Tab 18 Marijuana use and motor vehicle crashes-Mu-Chen Li,Joanne E. Brady. Charles J.

DiMaggio, Arielle R. Lusardi, KeaneY. Tzong, and Guohua Li,Epidemiologic Reviews

2012; 34: 65-72 (8 pages)

Tab 19 Drug use and fatal motor vehicle crashes: A case-control study-Guohua Li,Joanne E.

Brady, and Qixuan Chen, Accident Analysis & Prevention 2013; 60: 205-210 (6 pages)

Tab 20 The impact on alcohol-related collisions of the partial decriminalization of impaired

driving in British Columbia, Canada-Scott Macdonald,Jinhui Zhao,Gina Martin,Jeff

Brubacher, Tim Stockwell, Neil Arason, Susanne Steinmetz, and Herbert Chan,

Accident Analysis & Prevention 2013; 59: 200-205 (6 pages)

Tab 21

Effectiveness and benefit-cost of peer-based workplace substance abuse prevention

coupled with random testing Ted R. Miller, Eduard Zaloshnja, and Rebecca S. Spicer,

Accident Analysis & Prevention 2007; 39: 565-573 (9 pages)

Exhibit tab is a book, but was not included

-

Tab 22

.

Tab 23 Drug Testing Index, 2013-Drug use among American workers declined 74% over the

past 25 years, finds unprecedented analysis of more than 125 million workplace urine

tests-N.J. Madison,Quest Diagnostics (8 pages)

Tab 24 Fact Sheet TP 2436E, RS-2011-02: Alcohol use by drivers fatally injured in motor

vehicle collisions in Canada in 2008 and the previous 21years- Road Safety and

Motor Vehicle Regulation Directorate,Transport Canada, 2011 (14 pages)

112

Random alcohol testing reduced alcohol-involved fatal crashes of drivers of large

trucks-Cecilia B. Snowden, Ted R. Miller, Geetha M. Waehrer, and Rebecca S. Spicer,

Journal of Studies on Alcohol and Drugs 2007; 68(5): 634-640 (7 pages)

Tab 25

Tab 26 Alcohol-related risk of driver fatalities: An update using 2007 data-Robert B. Vopas,

Pedro Torres, Eduardo Romano, and John H. Lacey,Journal of Studies on Alcohol and

Drugs 2012; 73(3}: 341-350 (10 pages)

Do drug-free workplace programs prevent occupational injuries? Evidence from

Washington State Thomas M. Wickizer, Branko Kopjar, Gary Franklin, and Jutta

Joesch, HSR: Health Services Research 2004; 39(1): 91-110 (20 pages)

Tab 27

-

Analysis of injury events with fuzzy cognitive maps-Maurizio Bevilacqua, Filippo Emanuele

Ciarapica, and Giovanni Mazzuto,Journal of Loss Prevention in the Process Industries 2012;

25(4}: 677-685 (9 pages)

55.

56. Cannabis dependence as a primary drug-use related problem: The case for harm reduction-

oriented treatment options-A.D. Hathaway, R.C. Callaghan, S. Macdonald, and P.G. Erickson,

Subst Use Misuse 2009; 44(6}: 990-1008 (20 pages)

Being "at fault" in traffic crashes: Does alcohol, cannabis, cocaine, or polydrug abuse make a

57

.

difference?-M. L. Chipman, S. Macdonald,and R. E. Mann, lnj Prev 2003; 9(4}: 343-348 (6

pages)

58

.

A review of alcohol-impaired driving: The role of blood alcohol concentration and complexity of

the driving task-Teri L. Martin, Patricia A.M. Solbeck, Daryl J. Mayers, Robert M. Langille,

Yvona Buczek, and Marc R. Pelletier,J Forensic Sci 2013; 58(5}: 1238-1250 (13 pages)

59. Intoxication is not always visible: An unrecognized prevention challenge-John Brick and

Carlton K. Erickson, Alcohol Clin Exp Res. 2009; 33(9}: 1489-1507 (19 pages)

The mirage of impairing drug concentration threshold:

driving under the influence of drugs laws-Gary M. Reisfield, Bruce A. Goldberger, MarkS.

Gold, and Robert L. Dupont, Anal Toxicol2012; 36(5}: 353-356 (4 pages)

A rationale for zero tolerance per se

60.

J

Dr. Mace Beckson's expert report dated February 21, 2013 (108 pages)

61. Tab A.

Tab B.

Curriculum Vitae of Dr. Mace Beckson, M.D., dated February 25, 2014 (11pages)

Dr. Mace Beckson's reply to Macdonald's submission of February 24, 2014 (36 pages)

Tab C.

Cannabis and traffic collision risk: Findings from a case-crossover study of injured drivers

presenting to emergency departments-Mark Asbridge, Robert Mann, Michael D. Cusimano,

62.

Cynthia Trayling, Michael Roerecke, John M. Tallon, Alyce Whipp, and Jiirgen Rehm, lnt

Health 2014; 59: 395-404 (10 pages)

J Public

Risk of road accident associated with the use of drugs: A systematic review and meta-analysis

63.

64.

of evidence from epidemiological studies-R. Elvik,Accident Analysis

& Prevention 2013; 60:

254-267 (14 pages)

The need for drugged driving per se laws: A commentary-Robert L. Dupont, Robert B. Voas,

Michael Walsh, Corinne Shea,Stephen K. Talpins, and Mark M. Neil, Traffic Injury Prevention

2012; 13: 31-42 (12 pages)

J

.

65. Cannabis effects on driving skills-Rebecca L. Hartman and Marilyn A. Huestis, Clinical

Chemistry 2013; 59(3): 478-492 (15 pages)

66. Curriculum Vitae of Dr. Leo J. Kadehjian {39 pages)

67

.

Dr. Leo J. Kadehjian's professional toxicology opinion regarding Teck Coal Ltd.'s random drug

and alcohol testing program, dated February 7, 2014 (38 pages)

68. Dr. Leo J. Kadehjian's comments regarding report submitted by Dr. Macdonald on February 24,

2014 (10 pages)

113

69.

Quantifying the clinical significance of cannabis withdrawal-David

J

.

Allsop, Jan

Tab

1

Copeland, Melissa M. Norberg, Shanlin Fu, Anna Molnar,John Lewis, and Alan J.

Budney, PLoS ONE 2012; 7(9): e44864 (12 pages)

Tab 2 Acute cannabis consumption and motor vehicle collision risk: Systematic review of

observational studies and meta-analysis-Mark Asbridge, Jill A. Hayden, and Jennifer

L. Cartwright,BMJ 2012; 344: e536 (9 pages)

Tab 3 Driving on ice: Impaired driving skills in current methamphetamine users- David

Bosanquet,Hamish G. MacDougall,Stephen J. Rogers,Graham A. Starmer, Rebecca

McKetin, Alexander Blaszczynski, and lain S. McGregor, Psychopharmacology (Bert)

2013; 225{1): 161-172 (12 pages)

Medicine ⁹-tetrahydrocannabinol (dronabinol) impairs on-the-road driving

performance of occasional and heavy cannabis users but is not detected in Standard

Field Sobriety Tests-Wendy M. Bosker, Kim P. C. Kuypers, Eef L. Theunissen, Anke

Surinx, Roos J. Blankespoor, Gisela Skopp, Wayne K. Jeffrey, H. Chip Walls, Cees J. van

Leeuwen and Johannes G. Ramaekers, Addiction 2012; 107(10): 1837-1844 (8 pages)

Tab

4

A

placebo-controlled study to assess Standardized Field Society Tests performance

Tab 5

during alcohol and cannabis intoxication in heavy cannabis users and accuracy of

point of collection testing devises for detecting THC in oral fluid-W.M. Bosjker, E.L.

Theunissen, S. Conen, K.P.C. Kuypers, W. K. Jeffery, H.C. Walls, G.F. Kauert,S.W.

Toennes, M.R. Moeller, and J.G. Ramaekers, Psychopharmacology 2012; 223: 439-446

(8 pages)

Plasma and urine profiles of ⁹-tetrahydrocannabinol and its metabolites 11-hydroxy-

⁹-tetrahydrocannabinol and 11-nor-9-carboxy- -tetrahydrocannabinol after

Tab

6

9

cannabis smoking by male volunteers to estimate recent consumption by athletes-

Rudolf Brenneisen, Pascale Meyer, Haithem Chtioui, Martial Sasugy, and Matthias

Kamber, Anal Bioanal Chern 2010; 396: 2493-2502 (10 pages)

Canadian Guide for Safe and Effective Use of Opioids for Chronic Non-Cancer Pain-

Part A: Executive Summary and Background-Part B: Recommendations for Practice-

National Opioid Use Guideline Group- April 30, 2010 Version 4.5, Web access:

Tab

7

8

9

htto://nationaloaincentre.mcmaster.ca/oofoid (166 pages)

Prescription opioids. II. Metabolism and excretion patterns of hydrocodone in urine

following controlled single-dose administration- Edward J. Cone, Rebecca Heltsley,

David L. Black,John M. Mitchell,Charles P. LoDico, and Ronald R. Flegel,Journal of

Analytical Toxicology 2013; 37: 486-494 (9 pages)

Drug and Human Performance Fact Sheets-Fiona J. Couper and Barry K. Logan,

National Highway Traffic Safety Administration and U.S. Department of

Transportation, April 2004 (91pages)

Tab 10

A critical evaluation of the Utah Power and Light Company's Substance Abuse

Management Program: Absenteeism, accidents and costs-Dennis J. Crouch, Douglas

0. Webb, and Lynn V. Peterson, Paul F. Buller, and Douglas E. Rollins, NIDA Res

Monogr 1989; 91: 169-193 (25 pages)

A review of the clinical pharmacology of methamphetamine-Christopher C.

Cruickshank and Kyle R. Dyer, Addiction 2009; 104: 1085-1099 (15 pages)

49 CFR parts 383, 390, 391, and 392 blood alcohol concentration level for commercial

motor vehicle drivers-Department of Transportation,Federal Highway

Administration, Federal Register 1988; 53(192): 39043-39052 (10 pages)

Tab 11

Tab 12

114

Urinary cannabinoid disposition in occasional and frequent smokers: Is THC-

glucuronide in sequential urine samples a marker of recent use in frequent smoker?-

Nathalie A. Desrosiers, Dayong Lee, Marta Concheiro-Guisan, Karl B. Scheidweiler,

David A. Gorelick, and Marilyn A. Huestis,Clinical Chemistry 2014; 60{2): 361-372 {12

pages)

Tab 13

The contribution of alcohol and other drugs among fatally injured drivers in Quebec

Some preliminary results-C. Dussault, M. Brault, J. Bouchard and A.M. Lemire,

ICADTS lnternational2002: 423-430 (8 pages)

:

Tab 14

Tab 15

Tab 16

The detection of illicit drugs in oral fluid:Another potential strategy to reduce illicit

drug-related harm-Kyle R. Dyer and Catherine Wilkinson,Drug Alcohol Rev 2008;

27{1): 99-107 {10 pages)

Opioid dose and risk of road trauma in Canada-Tara Fames, Donald A. Redelmeier,

David N. Juurlink, lrfan A. Dhalla, Ximena Camacho, and Muhammad M. Mamdani,

JAMA Intern Med 2013; 173{3):196-201{6 pages)

Cannabis effects on driving skills-Rebecca L. Hartman and Marilyn A. Huestis, Clinical

Chemistry 2013; 59(3): 478-492 {15 pages)

Tab 17

Tab 18

Acute and residual effects of marijuana: Profiles of plasma THClevels, physiological,

subjective,and performance measures-Stephen J. Heishman, Marilyn A. Huestis,

Jack E. Henningfield and Edward J. Cone, Pharmacology Biochemistry & Behavior

1990; 37(3): 561-565 {5 pages)

Cannabis (Marijuana)-Effects on human behavior and performance-M.A. Huestis,

Tab 19

Forensic Sci Rev 2002; 14{1-2): 15-60 (46 pages)

Tab 20 Detecting times of marijuana metabolites in urine by immunoassay and GC-MS-

Marilyn A. Huestis, John M. Mitchell and Edward J. Cone,Journal of Analytical

Toxicology 1995; 19{6): 443-449 (7 pages)

Tab 21 Urinary excretion profiles of 11-nor-9-carboxy- ⁹-tetrahydrocannabinol in humans

after single smoked doses of marijuana-Marilyn A. Huestis. John M. Mitchell and

Edward J. Cone,Journal of Analytical Toxicology 1996; 20{6): 441-452 (12 pages)

The effectiveness of mandatory-random student drug testing: A cluster randomized

Susanne James-Burdumy, Brian Goesling,John Deke, and Eric Einspruch,Journal

Tab 22

trial

-

of Adolescent Health 2012; 50(2): 172-178 {7 pages)

Preventing cannabis users from driving under the influence of cannabis-Craig Jones,

Neil Donnelly, Wendy Swift, and Don Weatherburn,Accident Analysis & Prevention

2006; 38(5): 854-861{8 pages)

Tab 23

Tab 24 Acute and long-term effects of cannabis use: A review-Laurent Karila, Perrine Roux,

Benjamin Rolland, Amine Benyamina, Michel Reynaud, Henri-Jean Aubin and

Christopher Lan ;on,Current Pharmaceutical Design 2014; 20{25): 4112-4118 (7

pages)

Prevalence of drug abuse among workers: Strengths and pitfall of the recent Italian

Workplace Drug Testing (WDT) legislation Isabel Kazanga,Silvia Tameni, Alberta

Tab 25

-

Piccinotti,Ivan Floris, Gabriele Zanchetti, and Also Polettini, Forensic Science

lnternational2012; 215{1-3): 46-50 (5 pages)

Marijuana carry-over effects on aircraft pilot performance-Von 0. Leirer,Jerome A.

Yesavage,and Daniel G. Morrow,Aviation, Space, and Environmental Medicine 1991;

Tab 26

62(3):221-227 (7 pages)

115

Marijuana use and motor vehicle crashes-Mu-Chen Li,Joanne E. Brady. Charles J.

DiMaggio, Arielle R. Lusardi, KeaneY. Tzong, and Guohua Li-Epidemiol Rev 2012;

34(1): 65-72 (8 pages)

Tab 27

3,4-Methylenedioxymethamphetamine- Effects on human performance and

behavior-B.K. Logan and F. J. Couper, Forensic Sci Rev 2003; 15(1): 11-28 (18 pages)

Methamphetamine-Effects on human performance and behavior-B.K. Logan,

Tab 28

Tab 29

Tab 30

Forensic Sci Rev 2002;14(1-2): 133-151(19 pages)

Injury risk associated with cannabis and cocaine use-Scott McDonald, Kristin Anglin-

Bodrug, Robert E. Mann, Patricia Erickson, Andrew Hathaway, Mary Chipman, and

Margaret Rylett, Drug and Alcohol Dependence 2003; 72(2): 99-115 (17 pages)

Final repor

driving-related skills-Herbert Moskowitz and Dary Fiorentino, 2000 [Web access:

www. htsa.dot.gov/peopie/in

rv

research/ b/Hs809028/Title htm] (58 pages)

Position on the Use of Cannabis (Marijuana) and Driving-National Safety Council

Committee on Alcohol and Other Drugs,Journal of Analytical Toxicology 2013; 37: 47-

49 (3 pages)

t:A review of the literature on the effects of low doses of alcohol on

Tab 31

Tab 32

n

i

u

I

o

u

.

Tab 33 Relationships between urinalysis testing for substance use, medical expenditures,and

the occurrence of injuries at a large manufacturing firm-Ronald J. Ozminkowski,

Tami L. Mark, Ron Z. Goetzel, David Blank, J. Michael Walsh, and Leo Cangianelli, The

American Journal of Drug and Alcohol Abuse 2003; 29(1): 151-167 (17 pages)

The relationship between serious injury and blood alcohol concentration (BAC) in fatal

motor vehicle accidents: BAC 0.01% is associated with significantly more dangerous

David P. Phillips and Kimberly M. Brewer, Addiction

Tab 34

=

accidents than BAC

2011: 1-9 (9 pages)

=

0.00%-

Official blame for drivers with very low blood alcohol content: There is no safe

combination of drinking and driving-David P. Phillips, Ana Luiza R. Sousa, and

Rebecca T. Moshfegh, lnj Prev 2015; 21(e1): e28-35 (8 pages)

Tab 35

Tab 36 The residual neuropsychological effects of cannabis: The current status of research-

Harrison G. Pope Jr., Amanda Gruber, and Deborah Yurgelun-Todd, Drug Alcohol

J

.

Depend 1995; 38(1): 25-34 (10 pages)

Effects of stimulant drugs on actual and simulated driving: Perspectives from for

Tab 37

experimental studies conducted as part of the DRUID research consortium

-J.G.

ramaekers, P.C. Kuypers, W.M. Bosker, K.A. Brookhuis, J.A. Veldstra, R. Simons, M.

K

.

Martens, M. Hjalmdahl, A. Forsman, and A. Knoche, Psychopharmacology (Berl) 2012;

222(3): 413-418 (6 pages)

Opioids-Effects on human performance and behavior-P.R. Stout and L.J. Farrell,

Forensic Sci Rev 2003; 15(1): 29-59 (32 pages)

Tab 38

Tab 39

Carry-over effects of marijuana intoxication on aircraft pilot performance:

Jerome A. Yesavage, Von Otto Leirer, Lt. Cdr. Mark Denari, and

Psychiatry 1985; 142(11): 1325-1329 (5 pages)

A

preliminary report

-

Leo E. Hollister,Am J

Cocaine-Effects on human performance and behavior-D.S. lsenschmid, Forensic Sci

Rev 2002; 14(1-2): 61-100 (40 pages)

Tab 40

70.

Reducing alcohol-related deaths on Canada

s

roads: Presentation to the Standing Committee

on Justice and Human Rights

-Robert Mann, Centre for Addiction and Mental Health, 2008 (6

pages)

71. Acute subjective effects after smoking joints containing up to 69 mg ⁹-tetrahydrocannabinol

in recreational users: A randomized crossover clinical trial Claudine C. Hunault, Koen B.

,

-

E.

116

Boeker, R. K. Stellato, J. Leon Kenemans, Irma de Vries, and Jan Meulenbelt,

Psychopharmacology (Bert) 2014; 231{24): 4723-4733 {11 pages)

Excerpts from Commonwealth of Massachusetts Civil Service Commission Re Boston Police

Department Drug Testing Appeals ("D" cases) {10 pages)

72.

Curriculum Vitae of Dr. Guohua Li, dated June 10, 2014 {42 pages)

73.

74.

Managing workplace substance abuse: Signs & symptoms, A drug "ED"ucation guide for

supervisors-E.J. Secondiak, ECS Safety Services Ltd., 2010 {14 pages)

117

APPENDIX

8 -CASES AND AUTHORITIES CITED:

By the Employer

Volume/

Bullmoose Operating Corp. v. Communications, Energy and Paperworkers Union, Local 443 (Roddenbush

Grievance), [1999] B.C.C.A.A.A. No. 254, 57 C.L.A.S. 224.

Canadian National Railway Co. v. National Automobile, Aerospace, Transportation and General Workers Union of

Canada (CAW-Canada}, 95 L.A.C. (4th) 341, [2000] C.L.A.D. 465

.

Carewest v. Alberta Union of Provincial Employees (Nasr Grievance}, 104 L.A.C. (4th) 240, [2001] A.G.A.A. No. 76.

Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc. (Alcohol and Drug Policy

Grievance}, 178 L.A.C. (4th) 223,96 C.L.A.S. 27.

Communications, Energy and Paperworkers Union, Local 777 v. Imperial Oil Ltd., (May 27, 2000) (Chair: Timothy

Christian

J .

)

.

Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown

& Root (Canada) Co., 2007 ABCA 426, [2007]

A. J. No. 1460.

Chinook Health Region v. United Nurses of Alberta, Local120 (Flu Immunization Policy Grievance), [2002] A.G.A.A.

No. 88.

Criminal Code, RSC 1985, c C-46, s 217.1.

Elk Valley Coal Corp.- Fording River Operations v. United Steelworkers' of America, Local 7884 (Edson Grievance),

[2005] B.C.C.A.A.A. No. 299.

Fording Coal Ltd. v. United Steelworkers of America, Local 7884, [2002] B.C.C.A.A.A. No. 9.

Fording Coal Ltd. v. United Steelworkers of America, Local 7884 (Rector Grievance), 97 L.A.C. (4th) 289, [2001]

B.C.C.A

.A.A.No. 173.

Volume II

Greater Toronto Airports Authority v. Public Service Alliance of Canada, Local 0004, [2007] C.L.A.D. No. 243, 90

C.L.A.S. 177

.

Health Employers Assn. of British Columbia v. British Columbia Nurses' Union, 155 L.A.C. (4th) 252, [2006]

B.C.C.A.A.A. No. 167.

Health Employers Ass

237 L.A.C. (4th) 1, [2013] B.C.C.A.A

n

.

of British Columbia v. Health Sciences Assn. (Influenza Control Program Policy Grievance},

A. No. 138.

.

Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited, [2011] FWA 8288.

118

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34,

[2013] 2 S.C. 458

R

.

Milazzo v. Autocar Connoisseur Inc., 2003 CHRT 37, [2003] C.H.R.D. No. 24.

Volume Ill

NZ Amalgamated Engineering Printing and Manufacturing Union Incorporated v Air New Zealand Limited, [2004]

1

ERNZ 614.

Occupational Health and Safety Act, RSA 2000, c

0-2, s 2.

Occupational Health and Safety Code 2009, ss 1, 7, and 9(1)

R. v. Cole, 2012 sec 53, [2012] s.c.J. No. 53.

.

R. v. Ladouceur, [1990]1S.C.R.1257,[1990] S.C.J.No. 53.

R. v. Metron Construction Corp., 2012 ONCJ 506, [2012] O.J. No. 3649.

R. v. Metron Construction Corp., 2013 ON CA 541, [2013] O.J. No. 3909.

Teck Coal Ltd. v. United Steelworkers Local 9346 (Elkview Operations) (Interim Order Application Grievance), [2013]

B.C.C.A.A.A. No.159.

Volume IV

Teck Coal Limited (Elkview Operation and Fording River Operation) v. United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service Workers International Union, (February 12, 2014) (Vice-Chair

:

Elena Miller).

Teck Coal Ltd. v. United Steelworkers Local9346 (Elkview Operations), 2013 BCCA 485, [2013] B.C.J. No. 2451.

Trimac Transportation Services- Bulk Systems v. Transportation Communications Union, 88 L.A.C. (4th) 237, [1999]

C.L.A.D. No. 750.

Unifor

,

Local lOlA v. Suncor Energy Inc., Oil Sands, (Random Alcohol and Drug Testing Policy Grievance), (March

25, 2014) (Chair

:

Tom Hodges).

United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and

Canada Local488 v. Bantrel Constructors Co.,162 L.A.C. (4th) 122, [2007] G.A A. No 33.

,

A

.

By the Union:

Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in

Canada, 4th ed (Markham,Ont.: LexisNexis, 2014) ch 12 at 12.98

.

Canadian National Railway Co. v. National Automobile, Aerospace, Transportation and General Workers Union of

Canada (CAW-Canada), [2000] C.L.A.D No. 465,95 L.A.C. (4th) 341.

.

Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Pape

[2013] C.J. No. 34

r, Ltd., 2013 SCC 34,

S.

.

119

Communications, Energy and Paperworkers Union, Local 777 v Imperial Oil Ltd., (May 27, 2000) (Chair: Timothy J.

Christian

)

.

Esso Petroleum Canada v. Communications, Energy, & Paperworkers' Union, Loca/614, [1994] B.C.C.A.A.A. No. 244,

56 L.A.C. (4th) 440.

Greater Toronto Airports Authority v. Public Service Alliance of Canada, Local 0004, [2007] C.L.A.D. No. 243.

Health Employers Assn. of British Columbia v. Health Sciences Assn. (Influenza Control Program Policy Grievance),

[2013] B.C.C.A.A.A. No. 138, 237 L.A.C. (4th) 1.

Bombardier Transportation v Teamsters Canada Rail Conference, Division 660, CROA&DR Case No. 4277, 2014

Canlll 5318 {CA LA).

Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 (Policy Grievance),

[2006]

O.L.A.A. No. 721, 157 L.A.C. (4th) 225.

Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Loca/900, 2009 ONCA 420, [2009]

O.J. No. 2037.

Irving Pulp and Paper, Ltd. v Communications, Energy and Paperworkers Union, Local 30 (Day Grievance), [2009]

N.B.L.A.A. No. 28.

Mechanical Contractors Association Sarnia v United Association of Journeymen and Apprentices of the Plumbing

&

Pipefitting Industry of the United States and Canada, Loca/663, 2013 54951(ON LA).

Metropo/ Security, a division of Barnes Security Services Ltd. and U.S.W.A., Loc. 5296 (Drug and Alcohol testing)

(Re), [1998] O.L.A.A. No. 1052, 69 L.A.C. (4th) 399.

Persona/Information Protection Act, SA 2003, c. P-6.5.

Petro-Canada Lubricants Centre (Mississauga) v. Communications, Energy and Paperworkers Union of Canada,

Loca/593 (Alcohol and Drug Policies Grievance), [2009] O.L.A.A. No. 400, 186 L.A.C. {4th) 424

.

Provincial-American Truck Transporters and Teamsters Union, Loc. 880, Re, [1991] O.L.A.A. No. 16, 18 L.A.C.

412

(4th)

.

Trimac Transportation Services

88 L.A.C. (4th) 237

-Bulk Systems v. Transportation Communications Union, [1999] C.L.A.D. No. 750,

.

Unifor, Local 707A v. Suncor Energy Inc., Oil Sands (Random Testing Grievance), [2014] A.G.A.A. No.6.

120

APPENDIX

C

Teck Coal Limited Management Policy

No. 27: Alcohol Policy

Teck

T.

STATEMENT OF flUNCfl>I1ES

1.

Teck Coal has an obligation and responsibility to provide a safe workplace.

2.

3.

The use llfnlcohol, whether casual, recreationa

l or arising from a dependency, can create unacceptable safety

risks to everyone on :rnfeLy-sensilive work site

a

.

Given the carry-over effects of alcohol, these risks occur regardless of whether alcohol is used while at work or

when employees are off work.

4.

5.

Teck Coal considers it imperative to take the steps set out in this Policy to reduce safety risks arising from the

use of alcohol.

The"se steps o·e

tr atmellt nnd uounsclingaJJtl by mtlking \r el III thnt if they don't stop using n\co ot in breaoh oftblPolicy and

have an lh \den\ ur near-hJt with alcu in their system, tbalr cmp\uymant will be umninute .

lnt<mdcd to ru;slst employees to stop using uleolool In hteaeh of this l'olley, by providing for

hol

6.

7.

The presence of alcohol in an employee's or other person's (see definition below) systl:m will be d tcrmined by

observati smell or by the use ol' arl alcohol testing ice such as a bl'elllha.ly er or the provision of a urine

sample and urinalysis, or byother means.

o

n

,

d

,

A blood alcohol concentration above 0.02 while at work is considered a safety risk and a "positive" test, and is

pl'ohibltcd by this Polic

y.

Tl111t is to say, for purposes of tpis Policy, a pcr!lon with an ru(!(I11C'll uoncentr tion

above 0.04 will be conside1•ed to have alcohol in his/h :r Ryslcrn and to be unllt ror work, whether ol' not suo:h

concentration would be considered impairment for other purposes.

11.

PURPOSE.

Tl1e-puopose of this Policy is to provide a safe workplace for employees ofTeck Coal in a manner that promotes

Ihe we!1-bing l.'lf Teck Coal employees.

III.

AYP!JCJ\'rrON

111isPolicy 11pplies to all employees ofTeck pertormtng duties at lhe work si.lesofT uk Coal or while working

oif-sitc.It also 81Jplies to contractors, sub·\lOnlractos nnd any other persons pcrlbrming duties at the worites

ofTeck Coal.

JY.

DlfFINITJONS

I

.

''Cn1l.lillentiul Atldiction A.ssCSllme.nl" m nli llii assessm nt of the Mt

problcm(s). It lnaludCll recommendations for treatment, such as rcs!dentia

and/or couosclli g. It also lncJudK cumnleudatio .!l nbuul U1c timing and conditions for the employee'retnm

t() work and deve

speolalisl

u

re of the Individual's substance Hbusc

·

i

Or OU4)atlcnt trealment programs,

n

r

n

,

lopment of 11 Monlt ring Agrtemc 1, Tho assessment will be perfon11cd by an atldlclions

t!Cted by Teck Coal and Teck C(!iil wUJ py¹¹tor all cosuf the ilSSessment.

sel

Page I of6

121

Teck Coal Limited Management Policy

No. 27: AlcoholPolicy

Teck

2

"Monitoring AR!' cme.ot" meai'IS All ngreement between the employee nnd Tcck C(l!l( tlt£1t f'el'.l out the tenn

aod CQJJ(.iltions under wl1icl1 t!1e emp

l

oyee ma)' return to work al Teek Coal

,

and shall includb rundom alcohol

1111d dru& testing and mqndatory ooovery mAintenance nativities tilr 11 flxcd term, {IS Bpproprlnte to the

individual circumstances.

3

"positive" means a test result which indicates a blood alcohol concentration above 0.02 where

used.

a breathalyzer is

4.

V.

"other person(s)" include.Teck contractors, sub-contractors and any other persons performing duties at the

work sites of Teck Coal.

PROHTBl1

T

ikD CON!)J)CJ'

No employee or other person shall possess, use or distribute alcohol at any ofTeck Coal's work sites:

a. Employees who possess, use or distribute alcohol at any ofTeck Coal's work sites wiJI be terminated.

b. Other persons who possess, use or distribute alcohol at any of Teck Coal's work sites will result in

their removal from Teck Coal work sites.

2.

No employee oa

Accol'dingly, employeorothet persons an: advised IlOilO consume alc•)lhll :11 f.,

and wust allow suOJcil!nt time for the-alcohol they c;onsume to be melab<Jii elilr

· other person hall l'eflOrt to the work lt.e or be at a VIOI'k ·sit- wllh alcohol in their system.

u

l

8 hours priOI' to their shit\

allending the work site.

(l

a. li:mployees whc1

employment (sec Section VIIJ, .b)

condlti

t

est positive lbll<lwing

Tcrminatq<l cmployaes will be considered for re-employment aLa

pre met (see Sectj(l VIII, 3.b).

a post-inoidontlnear-hit drug teSl shall be tc:rmiiUlted from

,

s

subsequoot date if tni

n

o

n

b. Employees wh<1 test positive tbllowmg a reasnnuble caue alcohol tesl (Of ho.ve t

h

e

llmell of

a

l

coho

l

on

their breat

h}

or rundono alcohol test wil

l

b

plHcod on a paid medical leave of nb cnce and roti:m:d to

an addMiu••s speeiali$1, ilnd be ret1ulre!l tc. meet cwtai11 corrdilions (sec Section VJ.ll, l.b,

& 2.b, 2.c, 2.d, 2.1).

1 :c, I.<J, l.f

c. Othcpersons who test positive fullowi.ug nny alcohol lest will result in those persons not being

pet

ac -sul

•

mittcd to p d(mn duties o·t 'reck CQI

si\os. If this ooours, tllt:.•e persons will be conslde·ed for

a

subsoquQnt Jate ifcertain cc;mditlons are mot (secSection IX).

3

No empl(\ycc or other person shall refuse to test through an alcohol testing device that is authori7.od by this

Policy. An employee or other person who refuse to submillo an alcohol test shall be treated as if they tested

positive, with the following consequences:

y·

s

a.

!

f

un crn

his/het' employment will be terminated (see SeC!ion VIJI, nrminatl:d employees will be

wnslderec.l for re- mpioyment <<l s11hsequenl dnle I'certllin oondflions arc me(see.Section VJLT, 3.b),

pl nyec refu es to sub111it to an [l.!coho! tesl followinl?. a post-incldcntlnenrlbil aJ<»hvl lest,

3

.

1J).

1

a

i

Page 2 of6

122

Teck Coal Limited Management Policy

No. 27: Alcohol Policy

(

Teck

b. If an employee refuses to submit to a reasonable cause or random alcohol test, he/she will be referred

to an nddictlous specialist, and be req

1.f &2.b, 2.c, 2.d, 2.t).

u.

il•tJ

d

to meet certain conditions (see Section VIII, l.b, I.e, l.d,

c. If an other person refuses to submit to an alcohol

Teck Coal site If this occurs; these pe mns will IJe considered for access Ill a subsequent tlat.e if

certain conditions are met (see Section IX).

tusl, they will not be permitted to pcrlbrm duties at

s.

r,

4.

No employee or other person shal

incll!d!;.'j, but Is not limited to, using mWJklng sgcnts, other devices or diuretic drugs, S11bslitut

and water-loading.

l

tnmper wi th a sample provided for alcohol (e$\lrtg

.

'fbis prohibition

i

ng other l111ids,

a.

Any employee who has adulterated/tampered with a testing sample will be terminated from

employment.

b. Other persons who have adulterated/tampered with a testing sample will not be permitted to perform

duties at a Teck Coal site.

5.

No cmplo ec shr•ll rcf\Jse to omply wltll l'CCommendcd lre!ilmMt Jllllns, including Monitoring Agreements,

authOrized by this Policy. II an employee fu

i

l

s to comply, hl$/her em

p

l

oyment will be terminated wllh the

nditions aJ"c 1ne1 (see Seol!o11 VT, 9;

oppOJ1unity to aptJlY for re-employment at 11 sub:;equent dllte if certain

w

Section VIJJ,

I

.f; Section Vill, 2.1': Scdlon VllJ, 3.b);

VI.

1.

VOLUNTARY OfSQ.tOSORE

The use ofalcohol, whether on or off work, can affect the safe performance of work.

2.

l11eref01'e, Teck Coal strongly encourages employewho use aloohoJ tn usc it approprlntcly within the

re;;trict

i

onof this Policy

·

end to seek assistance if they nre havi!lg prob

l

ems doing so before they hnve 11

1

l

incident or near-hit with alcohol in their system, which as set out below, will re uJt in the re.mlnation of their

employment.

3.

If rcquc.·WtJ, Tcck Cool will provide ns.,is!IIIIUtc l11 mployec.who want to stop alcohol in violnlion of this

Policy (voluntary disclosure)

. An cmph) · <" who wislwto make n volunta•'Y disclosure should spco.ll to their

supcrvi ur or

n

m mllor of(he !Iuman R.- ULII'I;c,tlt;partment. This information will be kept strictly confidential.

4.

No employee shall be disciplined for making a voluntary disclosure provided the disclosure is made before a

workplace incident occurs.

5.

Upon making

a

v(lluotary disc!OI"Urc, the emp!()yec shall be placed on a paid medical

J

oave of ab:lence and shall

be referred to an addictions specialist for u. Confidential Addiction Assessment, wl\ich the emp

l

oye will be

required Lo tlt!cnd. Reason blc travel costs will be paid

'b)' Teck Coal. The paid medica! leave of absence will

be for a reascmable period 10 permit the Confidllntinl Addiction Assc. smem to occur ahd to permit the operation

of paragraph 6 below.

Page3 of6

123

Teck Coal Limited Management Policy

No. 27: Alcohol Policy

Teck

6

.

An ettlployee will be aUowed to rehtnt to work after making

e

vo

l

untary disclosure if he/she <s

rccommem1ecl

o

mpllcs with the

IJ:eatmCllt recommW1dations (if IUIY) of Ina ndd

reasonable time: fntme.

Mm\lloting Agreemertl (irone1s teCOITintenc.led)

l

ctions SpL-ciu

l

l t, tolllpleles

a

t

r

e

n

tment

·pt'Ogrum

(if one is roaommendcd) within

uigns

a

i

s

c:hWI".d to work by an addictions specialist, and

u

.

7.

8.

9.

The employee must immediately comply with any recommended treatment.

Teck Coal will pay for the cost of the recommended treatment and treatment program.

An em

emp

employm"'tt nt a

p

l

oyee wbo ron to K hcrc to

·

a

Mtm!toring 1\gretlmcnt or to jJllrugraph (7) abovewill

b

e

1er

m

f

nated !rom

l

oyrr\enl. Employee.whoe employment ha. been terminated under UJis clause will be considered for re•

\

J

br;aquem dille if they are thu most

conclusively estublish tht they hnve received appropriate rrealmenl for lileir alcohol

Monitoring Agreement.

suitable cand1dnte for the ponltlrm, testoeg tivc on a pre•

employment u(cohol te

s

t

,

use if necessary and sign

a

VII.

UNSCHEDULED WORt{IFJ!VrnRGENCY CALl...lN

An emplo ;Cc who is contlloted to report to work in un emergency or for other unanticipated reasons shall refuse

the assignment ifhe/she lUIS alcohol in his/her system.

VIII. ALCOHOL TESTING AND ASSESSMENJ'S

(a)

Tcck.Coalmay t·equlre an employor oher person

cause to suspect theemployee or otber person hu

based on, but is not limited to, the following:

t

o

u11dergo alcohol

tenting where it hns reasonnb.le

K

a

l

cohol in his/her syslum. R : somible Cl1U$e may be

(i)

the employee or other person's demeanour or behaviour at the workplace, or other indications

of usc;

(ii)

the smell of alcohol onan employee's breath; or

(iii)

information that the employee or lllher person is using alcohol inappropriately or possessing

alcohol at one of'feck Coal's worll sites.

(b)

(c)

A

u

cmployt<; Who tc t;; poslli\le following u r asQJ)at;lle ca use determination shall be piHeed on

n

paid

medical leave of ub. ence ond shall

b

rcforrc

d

I{!an oddieliOn$

s

pecia.!!sl tbr

R

Confldcmtiull\ddiction

(lsscssmcnt, which lhc em Qyuc will he tt.'\

pi

(

lli rcd lo

·

UllcncJ

.

RellSonnblc trnvul ooslS will be paid by

'l'eck Cool The paid m.cdtCRI leave or ab once will be rot

•

a

reasonab

l

e

pcrlou IO I'ICI'Illlt the

Confldcntial Addictlou /l.,;sessn1entto occur,nmJ to pcrrnlt theoperation ofpnrp

_h

(c) bi!low

.

The employee vlll be retmnecl lo

but are not liml!ud to suC :CSsful uompletion oftn:uunent r\!torn!T

.wor!l

s

tl

jec

t

In specllied terms ruld conditions which l))!n!! inr.h1de

1

C

n{lu!lons (if any), compllm

1

C

e w!(h a

Page 4 of6

124

-,

Teck Coal Limited Management Policy

No. 27: Alcohol Policy

Teck

h

'

ea\rncnl p!'l.lgram (if

'

a

one is recommended) within

a reasonable Lime fmme, cleanmce 10 retum by the

nddlctions spccinllst,

n

d

the empluyce5lg in aMonitoring ,.1\greer.nenl (if one is recommended).

n g

(d)

(e)

(f)

The employee must immediately comply with any recommended treatment.

Teck Coal will pay for the cost of therecommended treatment and treatment program.

An employee

w

h

o

(ai

l

s to .adhere to a Mon

i

t

orln8 Agreernclll or In PlU'llgruph ((I) above wUI be

teruth:wtcd from ':mployment

.

Employee' whose employment has bean tcrrr'lir111tl:d Wldr thl!< ciAu!e wi

l

be considered. ior te-emp

l

oymonl nlll subsequent date if llley arc tl\e mosL suit ble eanclldnte for

pre-employment alcohol test, eonclus:lve establish that they have

roceivci.l appropriate lTCII\ment for their gn 1.1 Monitoring Agreement.

the position. te Lnegtltlvc on

o

l y

alcohol uRe if necessazy 110d si

2.

R1111dom Alcohol Testing

(a)

All employees or other persons are subject to random alcohol testing in accordance with Teck Coal's

testing protocols.

(b)

An employee who tClif:s positive shull be placed 011 a pu

l

d

medical

l

eave of abson(ll:t und hoi

I

be

rcft!l'rcd to 110 addidillru! !ipi!Cinlfst for a Confidential Addiction Assessm€nt, whiclhe emp

l

oyee will

he required to !1\ltild. Rea!ionable U-avel cost

absence will be for

to permit the operation of paragraph (c) below.

;

w

i

ll be paid by Teck Coa

l

.

The pald medical

l

vc of

a

reasonable pel'i11Li I<) permit the Cvnfidentfnl Addiction Assessment Co occur, and

(c)

he employee will be_li\r_Ie_Ci_CU_cm_sc_f\d_Jltn work subject to spccUied tmns und C()ndlliong which

sha l include

bul , re not limited to

completion or lreatnlcnl rCI)I)rruoendaUon•(If nny ), compllnn^lce

with a

treatment program (If ont:is recommended} within

a ro::asonablc time fhune, ctearMee lb retllm lly the

addictions speeinllst. and tho

e

m

p

.

loyee signing

a

MonitorinAgn:iliDc:nl (If nue

i

recommended).

(d)

(e)

(t)

The employee must immediately comply with any recommended treatment.

Tcck Coal will pay for thecost of the recommended treatment and treatment progrnm.

An eu

tcrrnlnatcd from mployrnant. Emj'll()y

will be consldcrod for re·employmont at n sulmqw

the )Osltio n, sls ncg.ntive on ll rre-employmenl alcoho

received app!Vprinle treatment for their alool1ol use Tf eooSSil ry and sign a Monitoring Agreem nL

•

tJiu,Yce who filll

s

to adhere lD

a

MonltoTing Agreement or to jJ'lrDgr<iph (d) nbove wJll be

es who.se umploy10ent has been tcrrniJiotcd uud<ll' this clnuse

ml dwif they 111 1! the most uilllb

test, C()nCJiusively est11blish lhat they hnve

e

:

'

s

l<.: 1,\U!ldti!nte for

J

t

c

l

n

PageS of6

125

Teck Coal Limited Management Policy

No. 27: Alcohol Policy

Teck

3.

Post-lnciden!/Nem-Rit Alcoho

l

Testl.tlg

(a)

Tcck Coal will require on employee or o!h :r pcl'st>n to undergo

atJ ncl or Otl lin cmp o)'e Dr other person rnay have cause(or contrib

nearh·it Incident at the wo ncc or wttl working otT-site

u

l

coho

l

tc.llting where

I

t

co

n

si

d

ers

t

h

a

i

l

ss

lon by

·

l

c

uted to an incident or

t•

kp

l

c

.

(b)

lltn(11Uyccs who test !JO&itlvc vn

'

u

nst

-

iuoj<.l nl vr ttem

•

-hit

n

ll

•

l

wl

I

T

ML . hall

th

l

1e hmlli llutCI.l iHim

£ll!ll.!.llymcnt. lillt

J

th>)'ccs whose

>

m

pli1yml

•

ltl hnll hec11 turmhiUleJ tlud

i

"luuc wil

l

lw uvn kltt'Of

l

for re-employment a1

Q gallve QO u pre-ernploymcnt

lrcH.tmeot for th lr coho useifnecessaryand

n

su

bs

equer'll date lf they

o

re th

e

most suitable candida

te

for lhe position,

t

esLs

ulcoh est

ol

t

,

oonoluslvelyestablish lhat they huve received npprllprl

te

tl

l

s

ign Monitoring Agreement

a

.

4.

Poliey l mplemcnU!lion

A copy of this Policy will be distributed to and endorsed by each employee through an acknowledgement form,

which new employees will sign at the commencement of emp

l

pyment.

lX.

BRI!:ACl'l BYOT!lERPERSO

S

A

b

t

't ch of this Polley by other 11crsoM nt Tcc,k Coal si

contractor) will rcsuh in erso not bcih permitted to perlorm duties nt any Tock Coal site. These

pcn;ons will b<l considered for cccss of Tcck Coal's sites a subsequent date If they test "egntivc on an

uve received upproprlnte tl'eiltm nt and ign a Monlto ing

tes who ere not employees (e.g. contractor or sub•

t

h

ose

p

a.

n

s

·g

at

alcohol tcL uonc

Agreement.

l

u

sive

l

y

e.<J!ablish lhDL 1hcy

h

!•

Original Date of

Issue:

Prepared by:

Original Signed By

Authorized by

Original Signed By

:

Dateof Reissue:

August, 2012

Dean Winsor HUMAN

RESOURCES

DEPARTMENT

Ian Kilgour

SENIOR VICE PRESIDENT

Teck Coal Limited

December, 2004

Page 6 of6

126

Teck Coal Limited Management Policy

No. 28: Illegal Drug Policy

Teck

T.

I,

S'l'ATEMENT OF PRINCIPLES

Teck Coal has an obligation and responsibility to provide a safe workplace.

2.

'

rhe use of illegal drugs, whether caSl.lal, rec

re.uional or arising from a dependency, can create unacceptable

safety risksto everynne on u safety-sensitive work site.

3.

4.

5

Given the carry-over effects of illegal drugs, these risks occur regardless ofwhethe•· the illegal drugs are used

while at work or when employees are off work.

Teck Coal considers it imperative to take the steps set out in this Policy to reduce safety risks arising from the

use of illegal drugs.

The&e steps ore in\en

treatmenT and counselling 1\ud by tn11klng it

have an incident or near-hit with illegal drugs in their system, their employment will be terminated.

d

ed

t

o assist employees to stop using II

l

eg>

I

drugs in bre;Jch oft

h

7o Policy, by provi

d

ing for

clear that iflhey uon'l stop using illegal drugon or off the job and

6.

The prusencc of illegal drugs In an employee

.

or (lther

pe

r·sons (see defutition below) system will be determined

by the pr4Jvislon of a urlnll ampland urinalysis or by st me other meanw.

JJ.

PURPOSE

The purpose of this Policy is to provide a safe workplace in a manner that promotes the general well-being of

Teck Coal employees.

III.

APPLfCATION

This Policy applies to all umployees ofTeelt performing duties at the work sites ofTeck Coal or while worki ng

off-site. It also npplies to contractors, sub-controuwrs and any other persons performing duttes nt the work sitoS

ofTeck Coal.

IV

.

DEFJM'tiONS

I

.

"

Illegal drug" rnennany dt'llg \lsred In Suhcdulcs

drug, prescribed by physicitm to "" individuul tlla

drugs arr:

1

-VJ of the Co/lire/led Drugs and S11b11fances Act, except a

bclng used by that Individual as prescribed. Prescription

t

l

$

·

cJealt willl in llscpnratc ptllicy enlifltd ''Medication Usc Policy".

2

"Confidential Addiction Assessment" means an assessment of the nature of the individual's substance abuse

t

pmblcm(s). It lno

nd/or couuoelling

work, und cl ov lopm lll of u Mon.itnl'ing Agrc<lrnulll

speciali selecLed by Teck Coul nnd Teck Co will pay for

l

,

udcs rceonunendaJ.i<)ns for lteuuucm. u rh us r ldt ntinl ur o•npmlcnl tt t

.

unc

lthe lhninnnd (JOntlilinns rur Lhmployc :'$ h:

rh .mucd ily 1111 1tClclictul n

n

t

f'l<

t

gr:orn

,

a

Jt

a

l

so includes reconlmcnd

r

lti Jt< ubc

n

•

l

l!rll

to·

·

a

c

liHSC m nl 1 Ill llc pi!.J·Ii

st

(

ll costsof the IISSi:S!lniWlt.

Page1 of7

127

Teck Coal Limited Management Policy

No. 28: Illegal Drug Policy

Teck

3,

"Monitoring Agreement" means an agreement between the employee and Teck Coal that sets out the terms

and conditions under which the employee may return l(l work at Took Coal, and shall include random drug and

alcohol testing and mandatory recovery maintenance activities for a fixed term, as appropriate to the individual

circumstances.

4.

"positive" means a test result which indicates the presence in the employee's body of an illegal drug or an

illegal drug metabolite.

S.

"other person(s)" includes Teck Coal contractors, sub-contractors and any other persons performing duties at

the work sites ofTeck Coal.

V.

I''ROJJJBITEP CONDUCT

l.

No employee or other person shall possess, use or distribute illegal drugs at any ofTeck Coal's work sites:

a. Employees who possess, use or distribute illegal drugs at any of Teck Coal's work sites will be

terminated.

b. Other person

&

who possess, use or distribute illegal drugs at any ofTeck Coal's work sites will result

in their removal from Teak Coal WClflc sites.

2

No employee or other person shall report for work with illegal drugs in their system:

a. Em ployees who lest positive following

employment (see Scction VJI!. 4 b), Termina!cd employees will be considered for re-dmp

Sllbseque:flt Jute lfcurtoln conditions l!l'e tnet (ace Section V!II, 4.b).

n

post-incid<mt/near-llil drug les

t

shall be tcmllnated from

.

l

oyment ul

a

h. Rm

p

l

oyeeli who test positive foll owing a reasonable causor r'llndom drug test will be placed on a paid

eave of absence and referred to an addictions speclaiL t. and be required to meet certain

conditions (see Section VII!, 2.b, 2.c, 2.d, 2.f 3.b, 3.c, 3.d, 3.f).

medical

l

&

c. Other persons who test poartlve following any df'\1& lest willre:;

u

lt In those persons not being p rmitted

will be considered for ccoss at a

t

o

perform duties at Tcck Coa

l

sites

.

lf this oceLli's, those

subsequent date Ifa:rtuln e mdftions are met (seeSection rx^p)^\!I'SOru!

.

3.

No employee or other person shall refuse to take a drug test that is authorized by this Policy. Any emp

l

oyee or

other person who refuses to submit to a drug test shall be treated as if they tested positive, with the rallowing

consequences:

a. Jf 1111 cmp

cunpiQym

>crnploymcnt ot

l

oy ;e

will be terminated (sec Section VHI, 4,b). "!'crminatod employees will be CC!nsid red for

subsequent date If certain conditions arc met (sec Suction Vrll, 4.b)

refuses to submit lo a drug test following n ptlst-inaidentlm ar/hit tJnJS. lest, his/her

e

n

u

.

Pagel of7

128

Teck Coal Limited Management Policy

No. 28: Illegal Drug Policy

Teck

b. If an employee refuses lo submll to a reaBOI'\nblc cause or random drug test, he/she wi\1 be refcl1'ed to

an addictions specialist,

and be l'equired to 111cet certaln conditions (see Section VIII, 2.b, 2.c, 2.d, 2.f

& 3.b, 3.c, 3.d, 3.t).

c. If1111 c.mployce l'efu cs co li<ke n pn:-cmpltl)

<

ment drug te.. t, hts/her upplicali n for employment will not

be conidered for employment at a

dltions remel (sec Soctioo VII!, I.e).

be (:oMidcl'ed (see Section VTI

uent dal;c ifcerlllin cn

I, l.b). These employeewill

IJ(Ibsc

q

n

d. lt an other pcr oo ref1.1Si:$ to submit to a drug test, they will not be permlned to perform dulles at 1'eck

Coa sites. If this ocCui'S, these persons wl11 be considered for acct:.S.!I at a subsequent date if cei'tllin

conditions are met (see Section IX).

t

4.

No employee or othel' person a l1al1 tamper with a bodily fluid sample pi'OVIded for drug tcsti11g. This

pruhibltlon includes, but is not limlld to, using masking agents, other devices Ol' diuretic dNgs, sW>stituting

other fluids, nd water-loading.

a. Any employee who has adulterated/tampered with a testing sample will be terminated from

employment.

b. Other persons who have adulterated/tampered with

duties at Teck Coal sites.

a testing sample will not be permitted to perform

5

No emp!l)yee shall refu• tn Clllillll)l with iCCommend ; .l trJI\llellt plans, including Monitoring Agreements,

authorlv.ed by th

l

Po

l

icy,

II uti ClllfliU)<N f:dh' w

'

Ol

l

if'l.)'

.

his/her emp

l

oyment

w

i

ll he lc:rmlna

t

c

d

will!

l

lle

opport

u

rlity to appl)• for re·emplt

y

l

ll

n

l

111

u

l1

qii<:I

H

uw tf certqln conditions 11.1'1) met (see Section VI

,

9;

Suction

V

I

U. I.e; St\otio11 VIJL 2.

1

;

·

otiPn

V

lll•.1.1:icction \/ill,4.b).

VI.

VOLUN'I'ARY DISCLOSURE

The use of illegal drugs, whether on or off work, can affect the safe performance of work.

2

Therefore, Ted. Coal strongly encourages urnployeCJwho use illega

l

drugs to seek assistance to atop using

Illega

l

drugslhey have un

hl

cidcnt or ueur-hll with drugs in their system, which as set out

bel

ow, wiJI

result lnthe tcnninutlon of their cmploymt:nt.

3

If rcquclitod,

di closurc)

mumbor oFthc

'

l' l'k Co

o

l

will JU

'

III'i•i "'imu

n

ce lo ernfllOyees whu want to stop using ille&Ql dru(voluntary

.

An employee whu wi

s

h

<:.>

l.

l

t

mlike

a

VQiuntnry disc

l

osure should spunk to thefr supervisor or a

R

umo11 Re our <'Ll dcpJ•rlrwml. TJ1is informutlon WiU

b

kept strictly oonfidontln

l

.

4.

No employee shall be disciplined for making

workplace incident occurs.

a voluntary disclosure provided the disclosure is made before a

Page3 of7

129

Teck Coal Limited Management Policy

No. 28: lllegal Drug Policy

Teck

5

.

Upon n1

a

k

i

ng

a

vo

t

unt

a

t

-y ul ctos

u

rc

,

I

lie employee shall be plooed on a paid

m

e

di

c

o!

l

ea

v

e

of ubseMe and

s

hnll

will be

-ence wil

permit the operntion

be referred to an arldicttons

8

p

e

i

ulim for

a

C

o

n

fidential Addiction Asscssmel:!l, whiah the

'

C

rn)lloy

o

e

r

equired lo attend.

be fbi'

of paragraph 6 below.

Rea

s

onab

l

e

lruvel coats w

i

ll be paJif by Teok

C

o

a.

J

.

T

h

e

puid med

i

cal

d

l

eave of

a

b

l

o

rensonnblc period to permit the Conlidentlut Add

i

ct

i

o

n

1\Ssessment to occur !Ul

t

o

6

A.n employee

w

i

ll beflowed lll re1.Urd to work after making n

v

6

ol

u

n!:!lr

y

l

d

i

sclosure if

es ruconu

work by an dd iotions pccialist, and

h

ehhe complies with the

treatment ccumm

r

eudatir,Jns (if any) uf the nd

d

l

cl

i

on

s

p

eci

a

li

t

,

comp

e

t

P

m:nded tl'elltmcnt program

(!r one is recommended) within

a

reaso

nabl

e

time frme.,

i

s. cleared

t

o

igns a Monitoring Agreement.

7.

The employee must immediately comply wilh any recommended treatment.

8.

Teck Coal will pay for the cost ofthe recommended treatment and treatment program.

9.

An employee wbo 1.11ih

ploymcJ

employmcnt al l\ su

cm ploymellt dr11

1

'

;

uiiJ

1

•

r

.:

L

\• u MottitoduAgrt!

C

men!

I

JI" l<l

(

'llll

"

ll(l,l'

i

l

h (7) nll< vc wlll

l

W

l\trull twt

e

<

ilmm

r

cm

)

t.

E

mp]ny c.-:1 wl\

\r.\Hilflluym nll•ro" beon terml

u

n:uc

u

V

thl••r l11i

;

t

l

n\

1

"

w

l

lllll<i

l'li!lc

l

oU fu

I'C•

h

lt:M

c•t

l

acu

on

L

u

l.l

l.v

l

lll

l

lhcy nt'l

'

t

h

e

mos

t

suituble a;a n.lld

u

t

lhr

\JI'r

he Jl"siliam. 1e

tncg:ttl vo: "ll" pc

·

•

g

t

,

c

1

l

y

hll ll$h

J

i

,

)

ll

l

they

l

mvc r uh

•

cc

l

llpp

t

i

p(c tremmn

t

l

hr Jlt

Q

ir dt11g

U

M<

il'

n

c<:essa

1·

y

an

d

s

i

gn u Mo

1

l

loru

1

c, Agreem< n!

VII.

Vlll.

UNSC!lEDULEP WORJ</EMERCli'.NCY

C

A'LI..-J

N

An employe

e

wh11 is oont"ated

t

u

reporl tO work in an emergency or for olher unanticipated reasons shall refuse

the assignme

n

t if hc/he has Il egal

l

d

t11gs ltl his/her systl

:

m.

DJWC TEST

I NG ANJ) ASSESSMENTS

1

.

Pr;:-Employmcot Drug Tmdng

(a)

(b)

(c)

Applicants for employment at Teck Coal will be requested to take

a drug test.

If an applicant refuses to take drug test, his/her application for employment w!U not be considered.

a

Any cu tt t.ll lu

t

e

m

wlhl

l

cs

w

p

us

l

tlve for un lllcr..o

cutt

th

l

a

irul.l

w

he ou,

ill J\111 11e n lr t' 'l.

l

11

,m

omr

p

l

vytHCIIt

h

lt\ nwy

t

c

t

•

l

g

u

p

rl.'

fC

J

)

I

)'

for

6rt tpl

1

11k'W

n ul\'lt'llltc

u

l

o.J tc.

T

h

d

l

d

a

t

c

wi

l

i

cl c-1!11

l

nymQ

u

l

in the ll

I'

1

they IJc-C the i111W

L

taltu

h

l

c

U

thuy

drugs over

tt dit.ltl

J

u

t

pt

o

i\ito ll,

l

ul

n

e211

L

h•e

n

1

J1

h1r

r

C-..tii1J

l

fi

)

11

J

i!l l l l'in

•l

,

concllslvc

lhy have

Monitoring Agreement.

l

y

es

l

tiiJ

i

ish

I

hu

t

l

t

(a

vc

t

< clvCJ.l nppro

pt

hnc

l

rt!;JlrlloUL li•r

i

ll 1,

\0

I

Jruy,

"

'

U

tttl

t

lmt

not used il

l

e

gn

l

a

perio..J tln11

"

'

:

ctu·mcll

D

J

I

J'I\t(J

t

'

i

lll

l

'

I

Teck

t

un

l

,

11111

1

sig

•

1

Page4of7

130

Teck Coal Limited Management Policy

No. 28: Illegal Drug Policy

Teck

(a)

l'eck Coal rn\lY rut1ull

'

c

Hll employeor other person to nndergo drug t.csling where it hus rcPsonable

caue to suspect thto emp

l

oyee tlr othl!t" person has been or Is u9ing illegal drugs. ReM<)Ilnhle Clluse

the following;

may be basoo on, but is nolllmitr.d to

,

(i)

the employee or other person's demeanour or behaviour at the workplace, other indications of

or

use

;

(ii)

informntion tha.l tile employee 9r other porson is using, possessing.offering fur sale, selling or

dis(ributing illegal drug& or Illegal drug parnph.ernalln on or otrthe wor.k site

.

(b)

(c)

1\n ernl)loyee who tests positive sh.all be placed on 11 paid medica

l

leave of absence and shall be

referred to an addictions speoiDiisl Jbr a Co

t)

fide

n

t

ia

l

Addlution Assessment which the employw will

be required to attend. Reason

-

ab

l

e

ti'DVel costs will he paid by Teele. Coa

l

.

Tllu paid medical lenve of

ulmcncc will be for lll

'

CUsonable period to permit the Confidrmtilll Addiotion AsscsSJtlcn!tv occur, nnd

to permit the operation of paragraph (c) below.

The employee will be returned to IWrk subjeol lo specified te

r

ms 11nd comlfrions wl11ch uhall inciYde

ry) compliantJe wltb

ucommenricd) wilhin a reasonable time 'frome, cleni'Bnce to return by Lhc

and the employee signing Mcmitoring AgrccmenL.

bu( u1e not limited to

lrl!atmonl program (if 11

addictions pecialist

s

tecessful comp

l

etion oftreatmenl recommcndati

o(if

a

,

t

n

e

is

r

s

,

a

(d)

(e)

(f)

The employee must immediately comply with any recommendetreatment.

Teck Coal will pay for the cost of the recommended treatment and treatment program.

t\11 (li llt'l"yl:e who fH ils tn

;

l

dh<:re

·

II'

u

Monlt1•1'iug i\ IJ!cem tl u1 In plorngruph (cll ulmvc wil

l

h

e

Lenultlllld lhttn cmnh•ymc:nt .Employ

o.: · who·

Q

lt\f

t

l

t'}'IIICill hn.< been lcrt lllnuled Llttdur lhic:llltm

wtll

the

l

e

mm•;ltl fi•tl for ru·Cinllil"'ynwnl at

u

,

PbS<:111nL tlul<

·

I

I' they 111 tile llle>l suil"l h: mdlt.latc lOr

J

lOSiliott

.

LC!>i.s neg>•t"'" on n pr·O.tnl)lf')'tll nt 1h'111!-

t

e

st

,

\:l.m

heir Illegal drug usc and !hut !hey h ve no!used illega

nitorill Agreement

d

uivc:l

y

$11il>ll

s

h

r

lt;u they

hllll

rccdvcd oppl'lmrlutlt:lttttwnl fw

1

l

drugover a

period of lime deemed aJ proprlute by Te<:k Cltal, untl SignMl

)

g

.

3.

Rondom .Dru.g TesiiOR

(a)

(b)

All employees or other persons are subject to random drug testing in accordance with Teck Coal's

testing protocols.

An

.

rnployee who tesl por.lllve $hull be placed Oh 11 paid medical leave

ti Addiction Assessm t, which the employee wUL

l>e requited to JIU ad. R.easuntlblc travel costs will bu paid by 'fe¢11; Co.al. 1'he pHit.l rnedicpl

u f obsence and sh< .ll bu

referrod to an addictions srecialist for a Conlitle

n

l

.

l

eave of

PageS of7

131

Teck Coal Limited Management Policy

No. 28: illegal Drug Policy

Teck

absence will be for a reasonable period to permit the Confidential Addiction Assessment to occur, and

to permit the operation of paragraph {c) below.

(c)

T

h

e

employee wil be returned_lto work suqject to speoffied terms Md eondit onwhich 5hull include

ecommendations (if^l'any)

,compliance with a

bulare no

I

\lrnited^lto 5UI.:tt:ssf

u

ocrnrletion or lreutment

r

•atmem program (If

ddictiorlS specialist,and

'one IreCommended) Within a r=onnblc time ti-nme, clennmce to return bythe

l

ho QfiJjlloyee signing a Monitoring}>(l'c.cml!lll.

(d)

(e)

(f)

The employee must immediately comply with any recommended treatment.

Teck Coal will pay for the cost of the recommended treatment and treatment program.

Au e-mployee w!Jo full

s lO adl1cre to a Monitoring Agreement or t11 parngr;ph (d) ubovewill be

terminated from eml'luymenL Employees whose emp

l

o;yrnet

oymcnl at a subsequent date if they are the most sull ble C>Jndid te fo1

pre-employtnent dl'u& les eonoluslvely establish tha they tmve

for 1heir illtgal W11g we and that lhe.y have no!used illega drugs over

tl has heen tc:.rmln ted under Ibis o:lnuse•

will he crlll.l

i

dercd

:

t(w

re-

m

p

l

·

the position, tests negative on

u

t,

t

J'e<:elved app1·opriatc

u•

eatmeo

t

l

a

period of tlme c.lecmc() appropriate by 'feok Co11l

,and sign u Monitoring Agreement.

4.

Post-l

(a)

n

cjdeni/Nenr•Hit Drug Testing

Tc

net or omls lon by

hi! incident at th;wor\(p

ek

Con

i

will requlre nn employee or oU er perwn to undergo dg testing where it considers that on

n

emp

loyee or t thcr perso11 mny have co

o

•

L <:d or·coutrlhutcd to an in< ident or near•

l

oc

or while work

i

ng olf-slte.

(b)

H

ll!lt

1!1!1hll'e

q

whu

L>

N

prmit.jvc ''n

u

mmt-inc jil !!l Ol' n m·hit dw11 lest shu/l he tsmqiu

l

<:ll ![um

u

lovmcuL ElltP

I

I.lYee wlwcrnp

s

l

<

l)'htellt

<lui

h

;

L,

I

I'!C I I !CrrtJinuted uncJ

r

t

h

i

s

ll

l

n

u

s

e

\VIlli

u

U<m.i

d

etciJ

liu r -t:mplu munt JJI

u

subsuquuh

l

r

1hey 11re the mosl S\tltnhle t:andil

l

ale li

'

the posi11Qn

1

t

s

negulive un <> pre-employment drug les1, conulusivcly establish that they huvere :ciwd ppropl'iate

treatment

f

m·

t

h

e

ir lllcg

l

drug uSc and thut thc.y h11ve nol u e(J ntcgl!} drugs ovr

a

pnriod of lime

domed appropriate b}• TeeCoal, and sign tl 1')1oni1od11g Agreement.

5.

P

pljtiY IUJ

l

ementalj

o

"

A

copy ofthis Polit:)' will bet.!Jstributed to nnd t:rldot'lled by eaoh employee through an acknowledgement form,

which new employeeswill lgn at the coi'l'lmencetn ;nt of employment.

Page6of7

132

Teck Coal Limited Management Policy

(

No. 28: Illegal Drug Policy

Teck

IX.

BREACH ny OTII!JjR PE"RBONS

A brenoh of tl1i11 Poli1..-y by otller persons wo

·•h ctllllmcWr pcrons not bdn;pcn

seus will idcred fur n o ·s ufTuc al sites

Uc> llduslvo eswblish thlll IIi ha ve culvu\1

lll'fMI.'IH lty reck

r

king atTeck Coal site who are not emp

l

oyees (e.g

.

contractor or

These

·

)

b

wlll n:sult In li

m

ni

ucd to perform duties nt Tcck Cnal ile. .

pe

r

•·oru

;

k

C

o

'

.

u

l)l'O

l

n

ubscquent date iithey lest negative on a drug

riOlu treatment and that they hnve not sed illega

Monitoring Agrc:ement.

t

es

t

.

l

y

r

O

ll

il

t

l

rlJ\

I

fl

S

Jr :1 pur1ud oftlmc d<!mc<l

S

C

ual,

an(] sign

a

Authorized by:

Original Signed By

Original Date of

Issue:

Date of Reissue:

August, 2012

Prepared by:

Original Signed By

Dean Winsor HUMAN

RESOURCES

DEPARTMENT

IunKilgour

SENIOR VICE PRESIDENT

Teck Coal Limited

December, 2004

(

Page7 of7

133

Teck Coal Limited Management Policy

No. 29: Medication Use Policy

(

----------

-

'-'

.........-:..

Teck

-

I.

2.

STATEMENT OF PRTNCll'LES

Teck Coal has an obligation and responsibility to provide a safe workplace.

The use of prescription Medications and over-the-counter medications ("Medications") (see definition below)

can create unacceptable safety risks to everyone on a safety-sensitive work site

.

3.

Teck Coal considers it imperative to take the steps set out in this Policy to reduce safety risks arising from the

use of Medications.

4.

General responsibilities of employees and "other persons"(see definition in Section IV. below):

a. An employee or other pet!ion who is prescr

consulting with hi$ or ht:r physician about the pot

could have on the employee's or other person's a.bili(y tO perform his

i

bed a Medication by a physician is responsible for

nti rs ef/l!(;[S Wbioll the use ofthe Medicalion

her work li!lf'ely

e

al a.dvo e

01

.

b. If the Medicationprescribed by the physician could adverselyaffect the employee's or other person's

abilityto work safely, and

other ptrso mus

employee must Lake the Mcdlctllion und be absent from

U

1er

e

is no alternative to thMedication th

Co and ovide a physician's note stuting the period of time that the

rk

nt would be safe,the emplqyee or

n

t

advise Te

.

c

k

a

l

pr

wQ .

c. An employee o•

directions and ww·nit1gs on the Medicution and detemrine whether using the Medication could

ersely aff his or her at1ility to work n!C!y. If the employee or other pe{Silll is unccrtaJn about

hether- he or he will be blc to perform hla or her work snfely while ing the Medication, the

employee must consult with a physician or phannacist.

·other person who is intending to take an over-me-counter Medication mut read the

av

c

t

s

w

s

n

us

d. Whenever possible, an employee or other person must choose an over-the-counter Medication that will

allow the employee or other person to meet his or her work obligations.

5

.

This

of this

in breac

be terminated

M

c

P

h

dl

olk

11fthis 1-'o>ll

u

atiu

n

Us

I

!icy is intended to assist employe<!

t

nnvul

d

n

l.lr

d

mg

i

s

cont

J

p

ue ui

u

g

Medications In brC!

I

c

h

:y

,

hy pwvldlnt: for trcannent and C\JWJ9

0

i

tn nnJ by

m

k

f

t

dm thll

t

il

'

t

hey do use Medi

c

3tio

n•

y

IUU

I

huve an in

c

iclen

l

or near-1111 wilh Mctlt•tinns

111 their sys

t

e

m

,

tlui

r

emp

l

oy

m

e

nt will

.

6.

The presence of Medications in an employee or other person's system will be determined by the provision of a

urine sample 1111d urhtu.lysis or by some o

t her means.

II.

PURfOSE

The purpose of this Policy is to providea safe workplace in a manner that promotes the general well-being of

Teck Coal employees.

Page 1 of7

134

Teck Coal Limited Management Policy

No. 29: Medication Use Policy

Teck

III.

APl'LlC

A

TION

'T11

i

s

Policy applies to all employees ofTcck p rforming duties at the work sites ofTeck Coal or while working

off-site. It also applies to contmctors, sub-contractors and any other p n;ons perfonning duties at the wuJ'k si'tes

ofTeck Coal.

IV.

DEFJN!TfONS

1

.

"Medications" includes:

a.

a

Medications prescribed by a physician to an individual that is being used by that individual as

prescribed,

b. a Medications for which a prescription is required but is being used without a legally obtained

prescription, or

c. over-the-counter medications

(

that could adversely affect the employee's ability to work safely.

2.

''Confident

i

a

l

Addiction As!Jesmumt'' meuns an assessment of the nature Qf' the indlvfdu, t·s substance ubuse

II iuc tldes recommendntions for 1reatment, outpalien reatment programs,

11ndfor counsalllng. also includes recommcndalions about the tlnling unci conditions for th employce's return

problen1(s)

.

l

s

u

c

h

as rcside

n

tfnl Ol

'

t

I

t

to work, nnd development of a Monitoring Agreement. The assessment will be p r:fonneit by an addia tloM

specialist selected by Teuk Coa

l

and 'T'eck Coal will pay forall oosts ofthe assessment

.

3.

"Mooilorlng Agr :emen1" means ao agreement between !he employe

e

and Tcck CoW. that sets out the terms

and conditions \Inlier whic

h

the. em ployee may return to work Ill T ck Coal, a nd shall incl ude random

Medioulions testing and manda!ory recovery m3inlonance activities for a fixed_ tcm1, as nppropriule to the

individual circumstances.

4.

"positive" means a test result which indiCIItes the presence in the employee's body of a Medication or

Medication metabolite.

a

s

,

"other person(s)" includes Teck contractors, sub-contractors and other persons performing duties at the work

sites of Teck Coal.

Page2 of7

135

Teck Coal Limited Management Policy

No. 29: Medication Use Policy

Teck

V.

PROHIBJTEp CONDUCT

J

,

No 11mploylle or other person shall use Medications or Eeport to work with Medications in their system that

could allversely affect th employee's ability to work safely

e

;

a. E!.mplf,)yt eS who rest positive followilJg a post-iucldt:nlincar-hiL Mc

-

tHceiions tost may be.

t

erminated

fFom employm ent (see Section V!H, J.b). Employees who are ranninated wlll be con itlered lb1 rc•

emp!Clymcnt at subsequent d te if certain conditions !ll"e me { cc Section Vlll 3.b)

a

t

,

.

b. Employees wlm rest positive followillg a reaso

on

ccrudn corrdll

r

a

able cause or random Medications test may be plnoed

a

psJd med ical leave of absence and rel'erred to an addlcLIOils speclaiJL, and be required to mect

i

ons (see Section vm, l.b, l .o .d, J.f & 2.b, .o,2.d.2.f).

.

l

2

c. Olhct

1

>erso;.

u

s

wl111 tct

1

o

i

.

\

J

vc ltllluwllrg nn

M tlic

ites

1r

(•ll:Ho:.lllcl (sec SectlonlX).

a

rions tes1 may result in those persons nol being

I his occurs, 1hese persons will be considi)J'cd for

Jll'l'llli ii"'J tu -rlorm cluti .W. Dl Tctlk Coni wo1 k

ucccs> nL subuqucmdate il cenl'lin 'uocliti

s

.

n

'

2.

No employee or other person sha ll refuse to take a Medications test that is MUWorized by this Policy. Ally

employee or other person who refuses to submit to a Medi<:< lions test shall be treated as if they tested positive,

with the following consequences:

(

a.

If llil employee rct11ses to submit II> a. Medications tc.t following a post-inddcn!lnear-hit Medications

test, his/her employment may be termirurted (see Section VU!, 3.b). Employees who ll!'e ter.ruioated

will b" considere<l for ro-cmp

Vlll, 3.6).

l oyrnenl at a subsC\jucnt date if curtlli.rr conditions m mel ( ee Sectioll

b.

c.

l

f

a:n emj'loyee refuses to submit to a reasonable cause or random Medications test, he/she may lle

rderred to nn !lddiotlons specialist (see SectfQn VIII, l.b, 2.b), and be required to meet certain

conditions (see Section Vlll, l.b, 2.b, 2.c, 2.d, 2.i).

J

.c, l.d, l.f&

I

fan other person refuses to submit to a drug r st, they may not be permitted to perform dulic.> at Teck

Coni work sites If this occurs, tbcse perMo will be considered for ; ceess at a subsequent date if

certain conditions are met (see Section IX).

.

os

No employee or otlter person shall tamper wltlr a bodily nuld sample provided for Medications testlnt:.

This

prohibition includes, but is not limited to, using masking agent, olher devices or diuretic drugs, substituting

other fluids, and water-loading.

a. Any employee who has adulterated/tampered with a testing sample will be terminated from

employment.

b. Other persons who have adulterated/tampered with a testing sample will not be permitted to perform

duties at Teck Coal work sites.

Page3 of7

136

Teck Coal Limited Management Policy

(

No. 29: Medication Use Policy

Teck

4

No emplO,)'ee shall rcl'use to comply with recommended rreatmeb\ phms, including Monitocing Agreements,

authoriztil by lhi.s Policy. If an employee fulls to com

p

ly,

hislher

.

empl.oyment will be t¢rminated with the

Vl 9;

oppOrluulty 10 pp

l

y for re-emp

l

oyment at H subs uent data If In conditions are met (see Sectio

n

,

Section VTIJ, J.t; Sectlop VJJI, 2.f; Section Vlll, 3.1)).

VI.

yO!,UNTAR)IDlSCWSU!Uf OF MED.ICATION MUSE

The use ofMedications, whether on or off work, can affect the safe performance of work.

l,

2.

3.

Therefore, Teck Coal strongly encourages employees who use Medications to use them appropriately within the

restrictions of this Policy.

In circu mslllnces where an em

p

l

oyee

h

w; bl!ootnn dependent on a Medication and seeks i!ll !9lunce from Teck

Coal, they mt sl do so they ha\1(: au iucidllnl or ucar-hit with Medication in their system, which as set out

below, may result in the rerrnlnfltion

o·

ftheir

·

ernploymem.

4.

Jf fequestecl, T ck Co[l) will provi!l!! 1.111sistanc: to employees who WMt to atop usi ng Medications

inappropriately end in violation of this Policy (voluntary diselosur ). An employee who wishes to make

a

vohmtury disctoslll'e should spca.l( to their Stlpervisot' or n member of the Human

irtformaUOit will be keJ.II $lrictl)l tonfldentlnl

•

Resources department. Thi

.

5

No employee shall be disciplined for making

workplace incident or near-hit occurs.

a voluntary disclosure provided the disclosure is made before a

6.

Upon maki11g

a

voluntal)' disolosurc, the omployce sbBII be placed on a paid med

i

cnl

Confidential Addiction Assessment, whieh the employue will be

travel costs will be paid &y Teck Coa.l The paid mcdicall ve of absence will

leave of abs<:nce ond shall

l:>e refcrred lo un ilddiclions spcola

l

ist

·fur

a

r

equired to atten

d

,

Rensonb

l

o

.

·

be for n rea£onable period to permit the Conlidcntial Addiction Assessment to occur and to permit the operation

of paragraph 6 below.

7.

An employee will

trelltmont recommcmdution

(if one is reconlmended) within

gns Monitoring Agr .< ment if appropr

b

allowed Ill returu to wor.k &fter making

{if any) of the addictiohS specialist, complttes a recommended treatment program

reasonable lime frame, is eare to work. by an add ictions specialist, and

a voluntnry disclosure If behho compiles with !he

s

a

c

l

d

r.

i

a

e

i

t

iiL>

.

8.

9.

The employee must immediately comply with any recommended treatment (if recommended).

Teck Coal will pny for thecost of any recommended treatment and treatment program.

10

An employee who ihlls to ltdlt'r

em loytnenl. E!lnployees whose empluymetll lms l1eun

empl'llyment !lt 11 nlc II' llt •y urc lite lllllSI uhub

elllploymenl Med\catiuus 1. eon lu lvely ""'liibl! h llml tln:y httW

Med{crltlon sbus if n cessury and sign Monit()r!ng Agreement.

.

It a Monl!ming At,:roCillllrtt

u

r trt I"

r

grtpl• (71all ve will bl.' tllrminatc·d lli!IH

1

nmnmu u•dc:r Jhls .,

[

i

ru r.e will be cc u•ltlcrcd

l

il

pru•

lilr their

r

t O:·

s

ul> :equu111

d

l

c

e411tdiclm

e

r

for lhu positi<ttl,tsls m:J::IIIIV1111

u

1

s

c.siV

d

ti)Jll

'll(ldul" lrilttltnen

t

e

a

Page 4 of7

137

Teck Coal Limited Management Policy

(

No. 29: Medication Use Policy

Teck

VII.

UNSCHEDULED WORK/EMERQENCY CALkiN

An employee who is contactr;d 10 repm·tco work in an emergency or tor other unanticipated easons shall refuse

theassignment if he/she has MedicatJ.uus iu lti!l/lter system that could arlv rsely frect his or her p rfonmmoe.

VJII. MED!CATIONSTESTlNG AND ASSES MENT§

I.

Reasonable Cause MediCllljons testiDSJ.

(a)

Tcck CoDJ may requlr(! an 1m1ployae or <Jlhr person to und rgo MediCiltiOnii testing where it hn

reasonable cuuse to

s

u

s

pect the employee or otherperson h11s bt:co or is

u

sing Medicationin violatio

n

o

f

thisPtJiicy Reasonablecause may b6 ba ed on. bu

.

t

is not

l

imited to, thefo

l

lowing;

(i)

the employee or other person's demeanour or behaviour at the workplace, other indications of

use; or

(ii)

informatilm thUJ. theemployee or other person is using.. possessing, vfi'ering ror sale

,

·

selling or

(

distributing ptescription Medications en or off the work slte in violslion of thi

s

Policy.

(b)

(c)

A t1 cm

r

l

oy tl who te

s

t

po:lti

to Dll uddi lin!ls Jlll.htl it for a COnfidential Addiction

quired rt;ferre

w

fur Murlillnli

t

J

IIS may be plnced on n paid medlc11T

l

eave or absence ami tn

tt)' he rdil

l

t

'Od

A

sscssmunl, w hich the

a

mp

l

oyuc wtwltlllc- n

:

>

ntlct \tl

l

r

d

.

IWIISonable U11vel costs will be psld by 'reck Con!,

reasonable pedod to permit the nfidentlal Addiction

m ofpl11111lrapb c) belo

The pnlllttltll nll 11 11 v l'uh

<

ttoc will be lor

a

C

A

cst ne

n

tto t!Clll ,llmltP

1

mh the

o

petl

t

li

t

w.

'

J1te employee will 'be returned to work subjeCI lo speci'(ied rarrus und conditious which shall incl ude

but nrc nut limited to successful completion of treatment recommendations (lf tmy)₁1lQmpllancc w]UIa

tre tmonl pro ram (ifone is r ommended) witbin arcasorrablo timeframe, learance to retnm by lbe

addictions speeiR!ist, and, lfl'eot'lnltne"ndcd, theemployee signing a Monitoring Agreement,

(d)

(e)

(f)

The employee must immediately comply with any recommended treatment.

Teck Coal will pay for the cost of any recommended treatment and treatment program.

A

n

,

uqolo

llflllhUilct

wJII ho: ul)nill :rt:d

lloc

y

wh

u

h.tl lll

r

11.1.l

h

uro l\1

:

o

M

c

mih)tin

g

grec!ll

•

1

to

h

l

<J I' to pul1lgraph (d) obovo will be

l

h11t't empl

o

yme

n

t, l.JII plnyccs whOc>e lllllplo}'lll llt

us

l

'lt)n

lerminnre_l)undcr thl5

uitab candidate for

t:OI)cl uafvcly establish hnt the)'

ond sign -a Monitoring

clausr.

l

llr

n

t

'

t·

O

mpl uy

m

r

n

t nl n ull.<cquenr du

1

·

il' they rrrc the most

s

le

1

p

o

ti

o

n.

tl!S

I

S

ewuivt.: 011 II ]J

I

'

III]1hl)'ll11 :ttl Mcdicntl Ill! IllS

!.

t

huvc rcdvcd appfl.ljlrht

Agreement.

f

lr mment tor lh ••r Medication use if

n

ecessary

,

Page 5 of7

138

Teck Coal Limited Management Policy

No. 29: Medication Use Policy

Teck

2.

Random Medlc.itionsTe. tlng

All employees or other persons are subject to random Medications testing in accordance with Teck

Coal's testing protocols.

(a)

(b)

An employee who

t

es

t

positive for Medi

c

allops may

on a psid mcdicnl leave of nbsenoe and

may be tefcl'red to lll1 addlctions spcciall.st for a^beCo^pn^)afi^cd^ee^dutlnl Addi tlon Asse.ssn\Oilt

, which the

employee would be required \o attend if referred. Reasonable travel costs wJil be pal>t hy tk Coal.

The paid nlcdioal lc-o: vc of ubsc:ucc will be for

a reasonable period to perm lllJCConfidemial Addiction

Assessm-ent to QCCU nd to permit 1ho operinion of paragraph (c) below.

r

.

(c)

The employwill be returned to work subject to speciiicd tc:.rmand conditions which $hall include

bill arc notlimitocl to suc essful comp!otiou of treatment rccommendat!ous (ir any), compli1111te with

a

treatment program (if one

i

s

rec

:

mmtnded) wlUlin ilteusunuble tim

!

frrurle, tl a.rance to return by the

1\greem< nt.

uddict1ons specfn

l

ist

,

Md, i'f recommended, the employeesigning

a

Monitoring

(d)

(e)

(t)

The employee must immediately comply with any recommended treatment.

Teck Coal will pay for the cost of any recommended treatment and treatment program.

An employee wbo flllls to adhere to a Monitoring Agreement or tu parograph (d) above will be

enniuat ti"oYu employment. Employees whose mploymen bsbeen tarmlnated under this ":la t1se

will be considered for re-employment at a subsequbnt dnt lf they arc the most eU.itsble <-'ilndidatfor

t

d

e

t

o

'

tile position, tests negative on a> pr<>l:mployment M dii)Hflons test, conclnslw!y estllblish thflt tlicy

have reeejved appropriate treotmcn

Agreement.

t

for their Medication use if llccessary aod sign a Monitor

i

ng

3.

P<!st

-J

ncick:nt/Ncar-HT! Medicati

o

ns

Testing

(a)

Teck Coal will require an empiC yee or other person to undergo Medlcntions "testing where il considers

Umt un act or omjssion by an employee or other person mn

y

,

huve caus ll or contributed to rut Incident

or near-hit incident at the workplace or while working off-site.

(b)

LlruJ?.Il•YOO.who

mny 1e tcrminntcd ftom emp

J

t

J

l itlw u11"

t

tVsHm:ill uou

r

Jt ar-hlt Mcdlcnticms tl<l!l li>r Mccli uo tU\HI

H

l

oyment. Employees whose employment has been terminated under this

clause will be considered for re-employment at a subsequent date if tney are the most suitable

candidate for the position, tests negative on a pre-employment Medications test, conclusively

establish that they have received appwpriate treatment for their Medication use if necessary and

sign a Monitoring Agreement.

Page 6 of7

139

Teck Coal Limited Management Policy

(

No. 29: Medication Use Policy

Teck

4.

Polley Implementation

A copy of this Policy will be dlstrlbmed

to and endorsed by CJJch em ployee through an acknowledgement form,

which new employees will si&o at the commenccmerH of employment.

IX.

BREACH BY OTHIDt PERSONS

A breaciJ of this Policy by other persons workl n,g at a Teck Coal slte Wbo are not et

n

ploytes (e.g

.

CO/Jirnctor or

uh-comraclm) nmy resul1 in

oct:urs, these fJ r&o will

un u J\lll'tllcatlu wst ounc!uslvely e;tabllh tiJut rhcy have received appro)lrinte treatment

Monitoring Agreement.

t

hose

n

crs!"

n

n•

1

fleing p.:rn1f

t

ted to pertbrm duties at Teck Coa

l

sites. If !his

n

s

,

be

consi

d

e red ru

r

11CCC:IS pf'l\•ck CoaJ•s ires Ill a s-ubscqu1:11L date if they test negative

n

s

I

f nccessury nnd sign

a

(

Original Date of

Issue:

Date of Reissue

August,2012

Prepared by:

Original Signed By

Authorized by:

Original Signed By

Ian Kilgour

Dean Winsor HUMAN

RESOURCES

DEPARTMENT

December, 2004

SENIOR VICE PRESIDENT

Teck Coal Limited

Page 7 of7

140

Appendix

D

Appendix 'D"

.........

,

r..,..

·

.

,.

,

....

.. Vi•·

1.... 11.

·

,...,.....

.

(

1

V

u

i

1,

.... t\r-4.•"

C'1Mt..

,.,I

'

.9 .

Bllf N9

.

BU[UO

BU£ Ntl

-

,

.......

..

^.-^...^..^..^..^.....

....

ur HI/

BUE Hll

BIIF H14

RIIF H1'J

,

_

..

AI· II

ltol\fftl

M"" l/

1011

lOll

lOI

0

.........

..

,

,,

'

.,..,.,...

-

..

.

l

,

.,.,

•

\

..

e

a;·s

.

..

•

t.•

.

I

mrr H17

.

._

·· t\• \l

·--

OU( H!6

r·

... .......

•llwll

t

+

4U..-U

5M" ll

Jill[*'"

Ul

11

tM,

I

.•..,....

... '!!1_:

toMiiiO'

Ulll

HIO

!10(1

,

t

.

2W1

..

"""'

T

.,.

l'l!·

_,.,....._

HUlNil

Uf NIH

UUl Hll

11.:

tt-MU

"

,,

coc;

·-IW'tS

IIJI,tll'

.....

-

-y !<f

-

.........

.

•

,.

'"'

....

..

.

.,_

·, ;· n

^BU^LIl^EN"^Bl

""

!.&...

.

\

"

1013

'

Ul Hl

ft·l \.lp.,.. .

"^""^'''^'-

':r.=:'"':'!'r'

+

.

....

, .n

•

_w^"_Ti..

#t J

141

T

......_.

,..........

BUF I:fi

1IINliiiDIS

r

..... coc

IN

,_0.,..

,....

,· ,....

No

llooiipd

BUE#S

Wild o. WCI,

--c.

BU£#9

lHC

..,_._c..-cJr -

lletwed

1"""'..-..1

Post

llo

4/l7/1lll4

0II2DM

BUE#lO

BUE#11

-.,...

.,...,

""

_,o

I

_st

-

_{_}

l'esllnrw-

•. en-'

llo

11{11(1010

..,-..

d

,

..

BUE#B

BUE#ll

IIIP

4f11VlW

"'*1M

,....,..

,

..

......_........,

r..-

ax: ---

BU£#14

BU£#15

I..,..,..

nc:

llo

uunDll

ltUtJIIU

........woe..-

-

,.o.,_

""

""""'""

I/II1JJU

-

_{_}

-·

..

,

.,.

Ill

_,....,.......,.

..

J

c:oc

I

Y•

1/ffim

tiWiiJU

J,IWU!

BU£#16

1

.......»11

1

II

coc

BUE_{._..}#17

....

_

.

_

'"

llo

nc:

'-c.-

W4111!

111fT

BUE #18

'"

wurnu

l>nN

W

,.._,,.

_,

.._..

.........

llo

""*-'

··---

-

BUE#l9

,

..

llooiped..lOU

C/Wllll

nc:

1liC

llo

---

llo

1/ 13

-

_--_a-

MIT

I

...

,.,

tilt

.........

fnl'*-

ca-r

BU£#20

Sl21n!Dli

Wort

--·--..

-

1-'"dN\_to_I\IHf.

1.....-l

,,,

lil2fo/2D1l

7fl!1/'1111]

BUE #18

-

llo

me

_.._.._.._.._.._..._..-...-tJ.

-

nc:

li OC

BUE #122

-

'"

..

SlallJII ,..,,.,,,...,_

tiii"Jm

BU_.£_.#2_.3_.

..

_

.... ...

-

.........

YH

1

nee

tln!TI

""'*-

""""""'""*-'

Teck ltd. v. United Mine Workers of

A

.

.._

16956 Grievance

-

Drug

&

Alcoho

l

menca, ocal

,

..

8UE#24

.........

tmi»U

.

1IIC

-........

..._

,

..

nee

1HC

nc:

::..n.t1llwfllllloolod

1>'=

BUE tf26

8UE#25

lilo

""

THC

BUEfl27

!fml>1

f\?rJ

'

i,Z

-

'"'

.......

-

--..

-

..

-

UldliiU

c..-

I;;;-.;

..

1..._.

ljg

TOII,..!eN

V4/»IA

BUf.#l8

...-

n_

-

'-""-

""

,

BUEf#B

BUE#16

.d{J\

DATE

ll1f»lll

DP1

,.,..,.,

.,.,..

T

AlEXANDER-SMITH

.,..

ax:

f"''lbbfM

......to

"""Pfy---P'OI'Im

(m,.,_

-

JANE

ARBITRATOR

.....

,

< o.-ea.-

J/17/7f1A

... --·--

·

""'

-

c........w_,

111[1/fiiC

IOOdom

1/lflDI.t

BU£#28

142

143

-

--

-

·-

-

"- ,_AkPoo ta -- -....

sts

. Nan

-

LCO

QUINTIITTI!

·-

I

L

.._

u.s

,

Site

H.o•_,..._

I

.I

l*/,_,

1

T-1-..

1

....

IAI·Ilnq

l

Ptu:

:scrw Ak

r

a.Ji

N<oo -

,._ ...,.""'""'1--!!IL._•- --- ^T_

-

a

•

T

-.-..

o

m

,.JIAI.Ioo'MIIO

J

T-"

-1

.... .I!Ao-^""'""'""

·I

,

Slti>

.I .._.,

.I

.1

lflll•n Dftl

•-

dDm

LtObDrll«

UbJlRC

QUIHTirTTil

-----

LCO

S1

J

•r:m-J!"CCII.<Nr

1'011 '

J

NaDUIIr

POi5'TIN(iiDEN'f

rl»J'oHII>llil

-

II!

.,

1

0

J

0

"

5bAI

1

-

•

--

-

"'

.....

D

--...,.

-

- -

--

'-"'

- ,

-

_:-

-

0

{I)

144

l'w ""'Ak

P

N•"-

"

Ae4"unl

--

""

--I

1

..

•

2

0

J

0

85

.a

0

72

1

0

•

...,MilO

I

.J

I

r--..

1

Sito

I

IAbl>n

q

),

1-

I

T-"-

1

Sit

I

,

.....

1

T.W'"cJ Silo

J

IAbDNo

Pos

J

j

!AI>-·

.SIW.Air.

NN..

.dn•11

tea" :

Non N.q

Tot.t

SJt.

J

bibOne

J

-

SAoAI<

LobJMAO

-

.

......

.

--!:!!!L.._

.

.....

..!!2!!..!!!L

PiK

"

Rl!(uyl

tnt&

Pos.

SMAleIPcB

liMlc

Han N!!!W.

Pos

»le-Ait:-...

Nee

l\M

"la!JI.h: P!»i

1

--

·-

-

&.CO

QUINTnTil

M.1UONA'bl.EoCAU.SII:

llt:ASONAML CAUSL

.AIA\OIU.l CAUK

-1\IASONAMl CAUU

T tln

•

l

_

Sit.

_

j

Lti•Dnlll

_

l

Ub/...,

_

l

T_......, ,_

I

lAb""'•

I

.I

I

Tat.1

l

SltAI!!

I

b•Dr.1.1.1

I

_

J

.1

'-""/MRO

I

......

r

SR· tab-.

,_. !to• ltr1!

.....

0

N oPoo-

UI>IMIK) NH. Ruf .YI

t.5t.

G

p

l

0

OJ

J

<

0

5

0

J

11

•

"

LCO

Mroclam

QUINTII'ITI!

lbn

hbDRC

RaDelom.

.Ftail llOm

d

om

- -

^Totour._.,l_,

.

Ro-

SIW

j

.....,_,..

"""'

1

J

Ubi,_,

_

[

T

_

......

,

J

l-ab-.,1

1

....,_,

I

IAb/NKO

I

r-at•drt..R

t.sb.

I

Sl&oe

!

Nan .._

J

'•DRIIJ

1

J

Totilld..ac_)

••lh

_

j

_

l

-

_

fion^S_l^t<^t/^e_...

_

Srt.Aic

bobiMRO

N

..._

(1

...

--.!!!!L.._

test,;:

Non NN

Pos.

:S.tt.N.c:.Pot.

......

PwK

Sitel<k.Po1

IJI!!Iiuol

Rolvul

a

--

flefunl

..

J

0

1

()

..,

71

Cl

ri

0

tl

t

l

tl

--

"

"'

LCO

QUIMTaTTa

-

........

Pol;.

5oii•AicPee

Sit<>Ok- lA/MRO R-

.....

Slto.-1'....

""'""")

-·

,

I

...u. ......

......

,.

..... ......

--

ca-. I

1'03'1 '100>111

POS'I1H.C

I

DUII':r

POISf I N<!IDLNT

KIST JNCIOEN1'

Tot.loh·

l

.....

I

.......

I

.I .....,,_,

I

...,_ Tolaii<I•UI

J

s....

_

I

LobJ>nc

I

.ll*/PIR>

j

T

..........

u

I

La -·1

.I

Ycnall<lu•a

l

SiOe

!

""'"'"'I,

.]

.I

1

0

10

1

c

0

1

l

0

1

<>I

•

'

LCO

QUI!fT81"1W

O,. IW100\IISf

-

1lfi\SONAIIL!f CAtl5.E

-

.R.EA5QNA.I.U CAI:IE

t ;AS I!IL"CA_,,U_..K_..

T_.,

_

,

Site

llfo.e_tt.:

I

Lal>

l

.._

.... ,,_..

Total ttno.c

te.u

I

Sit•

I

"!

UbDnoc

I

J

j

._ -"N---.....J ^lob/MRO

T<>Uil'*•e

l'*'Dnc

1

J

lllb/MIIO

1

ltits ^j.,.^S.^l.^t<.^t,-.^l

..1<_

rc...

fot•l6r•e

1

-

11••.,...

1

.

I

1_R,.

....

...

tn11.

Pa.,

'5b-t!.Mc

.

-

,

,.

.,

D

D,L

Dl

<>I

.!J.

;;s,

"

-...!1.

145

,

_

1Yf111ul

-

"'--

,..,._G..

....

......!(

...._

.

..!!I

"

Tcrtal!Lin.8

1

......

.,.

,

_...,_

_

...

T(Tbl-..1

[

SOle

j

t

...Dno•

I

•

.I ,_...,..110

j

LB/NRO

I

ToMl*-E

I

Site

[

l..llbDnc

.

r-o.

J

T

....

-

.1

Site

I

Lob"-

l

.aRINODEHT

.

I

.

I

T-do""l

-

1

I>JUil

j

,

""""110

I

....

.

-

POST IIVOO £Nf

#Clti.HODfNT

P'a5rU.ODI:NT

a

<

.I.

'

"

..

I

.

..

...

>

I

'

l'<q•

Oj

t

&.

......r;ll

N

... ...

.....

I

SO.•I"L'

II

f

l

"'hJUiol

okl•l oi"'....

.

Po."-

Si\•Ak:.Ptl

t'f1'E-

f

(lolfl'

N""' 11""11

PQs.

.-......

U"" "'

"

.....

1 <11 1\0•f\ao """-'MJl

O

.

._.,

1

0

I>

j_

0

-

•

'

"

GHO

lFJll>

LCO

QUira.TTB

,....,,...,...,

!!! ._.

....... -......

-

-...

.....

N.,..

_

...,.

"""'AlcPooJ l.t>/ 100-

-

fiit

N

.P!r

P'

H

,

'Wf•.hh:P

o

,.

Jbdu UI

0

t

«d•

"'hHl &IN:

F'o-5

Ak.......

D

a

0

1

0

7

1

J

II

0

a

•

'

0

2•

7

2

Cl

•

-

..,,_I

l\lJ\!IOH"l>UII:IIUU

.I

I

.

I

J

I

i

J

""""

l

I

.I

I

Bl.A.SONAIQ£CA.UU

-R Stuti\•U CAUSI:

J• Orvp

AY.S_{_}tM_tABU'

To>........

,

_.,.. , •

T4talrlNR

SiM

J.abAIAD

T«•l .._,

Sfht

1 eDntR

T<M..

<J,.,

' """"

l•h,N.ORO

'"",:•o

I

'

146

147

148

149

-

II

'

-.

PRO

OHO

LCO

QUtNTeT'Te

_flo-·-

...

I'QO

Refusol

tests

P<u

1-'-/Mrtll

Rehisal

....

·-

0

1

0

2

0

1

-

Total dr\11" Nan-

-

•

-

1

0

30

1

0

1

_0

0

1\ondo<n

Site-Ale

A•nd.om

llondoon

Sit.efifon-

Tatoldruc SrteNon- Loll One

SiteAk:

TGD• dnaa

lilb Druc

Tot•I C1ru1

l.ai>Ot\11

SUe-Ale

"' Ale

Pas

............

.....-..

lA_..,_ ...,_

Rei.....

.....

L.ool>l>a>-

llafunl

......

..._.

....

""'

0

c

0

1

2>

0

D

0

c

0

D

o'

u

0

1

0

c

0

Q

0

1)

0

1

0

•

!!

8

u

!I

0

28

21

:tll

0

1

0

1

0

1

D

0

J3

.t•

u

D

3

0

.g

--

1

0

2

0

2

1

0

----'1

0

,

UJ

1

a

0

1

---

·

------i

9

0

i

1

0

211

0

_

o

11

1

0

1

0

a

:

-

_g

0

o

,

2

0

------o

u

0

t

0

I)

u

12

1!)

1

J

'

2

0

:l

28

27

2

0

11

1

8

0

a

_!l

!!

0

-

0

1

_o

0

1)

0

z

L

0

1

0

1

0

8

0

1

0

1

0

-

0

10

0

1

0

t

0

1

_g

---

'

:

--

_1

-

(I

1

0

1

0

G

5

1

0

1

0

3

1

0

lJI

0

6

1

0

1

-z

14

-

0

111

12

:10

2

329

7

s

1

131

10

s

2

37

2

---

- -

-;·ir-_

-

,......,..,_

....

-

0

a

0

-

0

u

D

0

-

o

()

D

1

0

c

I'

1-

'!

.....,....,....

PRO

GHO

LCO

QUIINTI!

I'OST lNOOE>IJ

I'OSTINODBII

teAk:

I'OST :RaDOlf

T-lc:tnc S"ll-e-- LoiiO....C

POST IIOCWlNT

lAb ON& Sit2 Ale

S..Ak:

TotaldrUK s-rteNon-

Site Non-

lilbDNc

Tot.tdn•

To<oldnrJ: s-....Non- Lollllnq

Sitl!Ak:

..........,

.....,.,00....

lesU

te>t•

Pos

sls

tREt.

I)

o

-0

0

150

0

D

a

D

0

0,

D

0

""'

0

J

0

c

0

g

·-

t:

0

to

]I

.

_g

]

()

0

a

0

<l

0

D

tJ

0

D

0

1

0

.!!

-

--

p

0

a

1

0

II

Q

0

D

0

C1

0

ll

0

1

_!

D

0

"

·-

0

+

-

0

1

0

1.

0

ij

..!

a·

g

D

a

_!I

0

J

0

1

--

-

0

⁰-- ^a

c

0

"

-=i

o

__

o

:

--

0

a

0

7

Q

0

.

0

!<

a

1

a

0

1

0

"

-

1

r-

1

J

0

1

0

1

0

5

1

-

--

.

0

2

0

1

0

-

PRO

GHO

LCO

QUJNTETTE

To ldrua SileNon-

Site Ah;:

Site Non-

loi>Dnc

TotoldrLJI

tobDno& SlteAk:

ToUtldrUJ

Tot:lllldruc S'"h'Non· Llt>DrUC

Site Ale

....,.....

_

...

...._.....

...,.

Lob One

SbAk:

RCASONIIILE CAUH

Pos

IWISOIOAIII£CAUS1.

M.ASoNABI£ CAUSI

Pas

RE.\$0NIIal.l CAUU

---

l.,._Oiilft ReflHal

s;,e_,.

..,

............... Rolusal

lab

Pos

Refusal

Nea

tes:ts

RefUMJ

te...

(I

0

.

!!

0

--

g

0

1

II

G

0

I)

0

c

a

0

a

0

a

0

1

0

_

!<

0

c

0

D

1

0

c

0

c

f--

Q

0

D

0

1)

0

D

0

o

0

a

0

---

₀r--- -----1

0

D

0

1

0

D

r-

c

0

2

1

0

D

_{_}D

o

0

_!I

0

g

-

0

(

0

2

0

7

o,

0

------!1

-

I

Q

ti

J

c

0

..g

0

tl

0

s

"

Q

0

G

0

o

0

Q

--"

J

I

:

0

t:

0

1

0

-i

_

l

0

-

.,

,

0

2

c

II

0

Q

0

o

0

a

0

a

o

3

ll

D

0

1

0

1

Q

0

E

0

Cl

1

2

1

0

'

-

.

151

I

_{--; --4---}+---

_---_--_--_-1_--_------

I

COMaiNm EMPLOYI:ES AND COfmiAClOIIS.VISIJOitS

CMO

CftO

EVO

AI..L

St

TES

,.

..

tests

kec

P

f"

LM./NMJ

AetPAi..l

tfib.

Pen

f'Q,

Rel16&1

t•sts

Net

POf.

C,hr/MWNroc

<

11

o

a

40

-o,'

,

'

,'

1

'II

1

a

:

1

r---

------7r-----

'

A

r-

;

ot^c::::

-

0

-------l-----------------

"'"i

l----

r-----

l

t------:

-

9<---?r-----J

'

I

i

----

1

-------

1

0

21

..

o

1

7

·----:

'

;

l

-¹;r

="---.:;·

;:.t

o -----=t2

-----1------':1

...

:,:

ll

-=.lt----'---::

0

l

a

21

29

15

0

1

0

It

1

0

o

l

1

Q

31

30_

I

1

80

l

1

Q

---'l-_-----"'"

,

^lt------:'^Ioi--------

,'

I

--------⁽'

C

c

-.i

no

1S

u

w

2

Q

o

0

o.

:

-

.

f:.===

:::==t

=====:

===========

:

t

:

-

---

:1

-----l------

o

l

e

----====o===-

----=:!----

:-------

:

_---u

..,

-

-------c--:=::jot===----

0

-----v ----1----Jl-----o

l

-----------cl----

1

+

-- ----

'

---

o

<

"= ---

-----·

:

:f------- ··----1

n

1

o

;

o

-!'

•

l

-'

-

----

:

o

t--------rl-

1

----* ----+

^------';lll

^s:^s:

.

o

----(j

1

-----w¹i

0

Q

-

0

•

c-

!.;-;

s

g

r

3

4J

14

-----fl

·

99a --- ,,

l-----g

r------,...o;;';J

71

?1

ALL SITI!S

CMO

I!.VO

CRO

labl>r J . S.ittAk

r

'

-

1-

.

L-;- ·; -t--

,

·

;o

----

i

,

-

::-+--

-

1

-

--;-

:

1

--

1-

:

"

_0::

--

:

=

1

CMO

CRO

EVO

lfOta

l

a.rr'Oion

,.,.^d.^t,^ilf....

•

z

0

u

l

v

0

1

u

0

Q

0

1

0

•

0

,,

f--

J

0

1

I

0

1

l

0

z

1

(j

'0

0

D

:-- :--4- -+-- -l--- ---1

152

l

0

u

0

1)

153

1

bndom

..,..,..,_

Slt<I

!.H.,

.

Stta Nort-

TOblldr

Too

l

dt-ua

LebOt...

IAbOJVC Site Ale

T r

-

Rd...al

--

Slat Ale

-

GHO

L;bo

r

SI18Non-

TotAi dnoK

PltO

LCD

QUJNTeTTII!

_...,

JWfugl

,...

,.

.....

....

Pas

0

Poo

MilO....

tests

eos

.....

Poo

.....

5

Poo

l'oo

••tu..-1

110-

p.,.

..........,_

0

1

3B

0

D

511'

1

I

1

0

1

..

-----

0

"'

4

I

0

G

'

1

Cl

1

tl

w.

0

3

0

a

D

•

"'"

n

_

o_

0

1

0

1

"'I

1

D

6

117

0

1

0

<16

2

0

..g

·

--

g_

J[

2

0

..

-

1

0

2

1

0

5

0

;

112

G

1

0

3

--

-

2

-

•

-

"'"

48

0

2

0

3

0

1

56

3

•

Ci ---w-

rn

0

o

1

0

5

0

2

_)

0

o_

0

•s

Cj

0

..

0

1

,

_,_,

•

s

4Cl

0

2

"'

2

1

-

..

D

0

1..-a

0

iiS

0

1

z

0

13

0

2

0

3

•

7

1

_.g

"'

s>

i---1

0

-

1

0

JO

3

I

43

2

1

5

o_

S7

2

109

3

0

.!!.

........g.._

0

g

1

0

..,!

2

129

s

.....,

42

1

0

6

D

1

0

--

-4

,

®

548

19

..

o

0

"

1

,

15

111

2

I310

105

102

39

2

1

ll

0

2

J

.!

2

1

3

0

.!....

3

•

Soli

---

-

0

-- _:^d_i

-:J

'

"

..

u

0

,.

0

7

1

0

"''

2

1

•

-

r

3<

:14

25

--u- -

154

T""""""

--

2

5

2

0

110

"

LCO

POSTfNODOiJOT

QUINTETTE

roST

OHO

PGST ,,.cloENr

PRO

PUST INCJO[:NT

I

NCJD£NT

.....

IIO ttq

LIJJM

p

I..U

....

""•

-

Totaldn,lc ............ lobo,... ......AI<

StteHon·

SltlO Ale

LebDrua

51WNc

Total dr"- SH•Han- lAbOne

5neAic

TGUIIdru&

Lab D."u!f

losll

Pm.

tuu

Noa

Poe.

Pos

0

1

0

......

0

----

--

1

"""""""-

0

11

6

0

5

11

0

D

ll

7

n

0

o

--

0

---,----'

0

11

.!'

o

&

1

0

1

0

o

1

0

(.1

0

----

0

6

0

7

0

-

0

7

5

0

D

0

_1

0

'

-

:

-

"₇'

-

(I

0

1

0

5

I

0

1

•

0

1

0

D

0

D

0

o

-

--

o

-

7

J.

---1L-

----

1

--,--

_o

o

1

0

I

0

D

L_.I

0

o

"

a

0

_

o

,

0

c;

0

Jll

"'

0

1

0

3

1

0

s

0

.!1

o

0

3

0

----

----,---,

•

11

0

1

0

-

₁8₁₂

g._

0

31

0

4

1

"'

0

1

0

1

!_

0

1

0

1

0

_

0

I

----

0

2

74

s

1

21

:1

119

2

0

1

0

.

.......

_.....,.

fW\SOIIMU CALI

S

[

-QNABUCAUSE

IWUONA8LECAUR

lAo

=

0

D

0

Cl

0

1

0

2

0

---+---

0

--·

0

-

.

LCO

QUINTEJTI!

GHO

FJIO

0

,_,11<"11:

S1t:DNon

twb

ou4

S&te. "*

.........,..,_

.....,_.,_

rVfal <ln.W SllloNcn· Ubll<... Site AI<

Totafdr'-'C

T

-..Jdu•

RcfLD

lA :ua

\1

sa::c

,....

....,_,

N..

V!!

H

Po\

Pos

"""'

o

-

0

1

0

1

-

0

N""

JteJusa1

!!....._.

p,..

-----

0

D

_

o

'

0

o_

0

I

0

I

0

!?

0

o

0

«!_.

r-i

-

0

I

D

I

0

I

.E

-

....,..----.

--0--

0

1

D

o_

0

-

0

1

0

o

0

z

]

0

u

0

D

0

D

0

o

0

D

0

_

1

g_

2

-

-n--

--

D

o

_

I

0

:-

l

z

I

o

"'

0

o_

D

0

J

0

--0

D

0

_o_

0

155

I

0

-----o--

0

..

u

0

o

0

1

--

0

1

0

--

'

'?--

-

:

-----

0

1

0

1

0

]

0

3

0

2

0

1

0

10

0

!II

2

1

D

s

'

I

'