However, the NLRB remained in favour of the employer with respect to two workers dismissed for positive drug and/or alcohol testing. The board found that these dismissals were not contrary to the LNRA because the dismissals had grounds, although the abuse of these employees was revealed by an unlawful unilateral change in the terms of employment. In 1991, the company informed the union in writing that workers who had suffered a cumulative injury or disruption (CTD) would not be subject to drug testing requirements. A CTD has been defined as a “repeated injury of a part of the body that occurs over a long period of time.” However, in 2006, the company required an employee who filed a claim for the cumulative damages of the traumatic audience (CtD), drugs and alcohol. Instead of waiting to see if the employee was in fact suffering from a CTD by a physician, the Chamber found that “the employee who does not have a medical degree decided that [the employee`s injury] should not be considered a cumulative injury to the trauma, and instructed the occupational physician to administer a drug and blood alcohol test to the employee.” This appeared to be contrary to the provisions of the 1991 letter, which excused employees using drug testing CTDs. With respect to the packing unit, the board found that the change in the policy that employees who had undergone an STS during their annual hearing test were also subject to drug and alcohol testing constituted an unfair labour practice. Again, according to the Board, the company did not provide any evidence that its actions were consistent with previous practices. It also found that staff had been forced to undergo drug testing. “It had to be done,” the company`s director of security said.
Employers with a unionized workforce should be careful in implementing any new policy and/or procedure that seriously affects workers` employment conditions, such as all aspects of drug and alcohol testing.B. Employers must provide the union with communication and bargaining opportunities before substantial changes can be made. Consultation with the advisor is highly recommended prior to the implementation of a policy or procedure that could be considered a change in the terms of employment.