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HomeMy WebLinkAbout1987-0959.Ethier.89-06-02EMPLOY& DE LA COURONNE DE L’ONTARIO GRIEVANCE C$IMMlSSlON DE ;;W&MENT REGLEMENT DES GRIEFS 180 Lwm*s STREET WEST, TORONTO, ONT*R,o. M.50 1Z8 - sum *ml ,8R RUE o”N*As OUEST. TORONTO. ,ONTlRIO,~M50 x8- BURUU21W Between: TELEPHONEIT~LdPHONE ,,,8,588-05.98 959j87 IN THE RATTER QP AN ARBITRATION Under TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SBTTLERENT BOARD OPSEU (Ethier) - and.- Grievor The Crown in Right of Ontario (Ministry of Health) Before: R.w. Wright J.D. McManus M.F. O’Toole Employer - Vice-Chairperson - Member - Member APPEARING FOR M. Ruby TRE GRIRVOR:~ Counsel Gowling & Renderson Barristers & Solicitors 8. de Matte0 Representative Ontario Public Service Employees Union APPEARING FOR W. Parson TRR EMPLOYER: Counsel Sanderson, Laing Barristers & Solicitors REARING: June 13 & 14, 1988 September 15, 1988 November 21 6 22, 1988 January 26, 1989 - Written Submission by Mr. Ruby February 17, 1989 - Written Submission by Ms. Parson March 3, 1989 - Written Reply by Mr. Ruby i DECISION This case is about video display terminals (VDTs). The Grievor and her Union are apprehensive about the possibility that the VDTs may release invasive radiation 'emissions. The Employer is confident ,that the VDTs are safe. Predictably, the parties adopt positions which are quite contradictory. The relevant provision of the Collective Agreement reads as follows: "18, 1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It. is agreed that both the Employer. atid the Urnon shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees." IunderliniQg added) The factual background of the case is extremely important. Although the Grievance is dated January 14, 1987 the situation actually began to evolve in October' 1985. The Grievor has been employed at all relevant tirries by OHIP. OHIP employs, we were told, the largest number of data entry opera& &an any other department- of the. Provincial Government in Ontario. For some time, OPSEU Local 628 had been active in the' ergonomics aspect of OHIP's operations, the Union's objective being to obtain a better work,. environment' for the operators and, specifically, to ensure that the WDTs did not leak harmful radiation.. Accord- ingly, on October 8, 1985 Peter Slee, OPSEU's.staff representative - 2 - in its Sudbury Regional Office wrote:! a letter to Mr. il. A. Laurin, 1! Olrectof of OHIP's Sudbury District Office as follows: "Please consider this letter a formal request for permission to have the KIT equipment in your operation tested for radiation leakage at the cost of the Union. Please advise me whether such teiting would be permitted and contact this office to arrange a mutually convenient date and time for the testing.': :' II The reply to Mr. Slee's letterml came from Mr. J. Campbell, il Acting Director of the Sudbury Dist,ri,ct OHIP office by a letter dated October 17. 1985 which said: \: II "In regard to your request fof permission to have the V.D.T. equipment in our operation tested for radia- tion leakage. I We will permit such testing pro&ding that O.P.S.E.U. assume the total cost of the itest; makes all the necessary arrangements and works +ith us for a mutually agreed "to-date" and time to avoid little if any inter- ruption of our operation." I, 'I The VOTs at the Sudbury OHIP office were thereupon tested at the expense of the Union by Radiatiin Environmental Management Systems Inc. The testing by the latfer firm was conducted by Dr. Hari Sharma. who is Professor of Chemistry at the University of Waterloo and who has a background in,,Nuclear Yaste Management. Dr. Sharma's report was submitted in]Oecember 1985. A total of 17 VOTs were tested for electromagnetic radiation emissions. Dr. Sharma tested the VOTs for ultraviqlet. infrared, microwave, I, radiofrequency. very-low-frequency and ,, extremely-low-frequency , - 3 - radiation. One of Dr. Sharma's conclusions was a,s follows: "All above mentioned units showed very low emission level of x rays, uv, ir, microwave and rf radiation. The levels were found to be well below the maximum permissible levels considered safe with respect to occupational exposure to the radiation." The acronyms have the following meanings: uv -- ultraviolet. ir -- infrared rf --.radiofrequency Dr. Sharma's report expressed some concern, however, about 3 of the units tested in that they' emitted magnetic fields in the extremely-low-frequency range particularly when the operator is seated within a distance of 25 cm. of the video display terminal. Dr.. Sharma's report contained "Comments on Health Effects due to Exposure to Pulsating Electric and Magnetic~ Field". ' He stated in part: ,. "The biological effects due to prolonged exposure to such fields are not 'yet well documented. As a precautionary measure we recommend shielding of terminals which we believe, may have E- (electrical) and H- (magnetic) field of high enough magnitude at the surface, so as to cause 'adverse' health effects like excessive fatigue, headache, nausea etc. to a significant fraction of VDT workers. .It is intended to follow latest developments in this area .and -keep' our clients informed of the latest results. In the meantime while making xecomnendations we follow the internatianally accepted ALARA (as low as reasonably achievable) principle in the area-ofradiatlti. Hore- Ger, it is 'our opinion that shielding of terminals can be achieved at a reasonable cost and RENS (Radiation Environmental Management Systems Inc.) can provide assistance, if need be, in designing an appropriate shield for a particular model of terminal. It must be emphasized that the shielding of the fly-back % - 4 - transformer is often not sufficient. There are other components, namely the yoke. jtwo coils and in some instances switching power supply unit which emit vlf radiation.' I, I The Sharma report was the subje& of discussion at an Employee II Relations Committee meeting held at Sudbury on April 24. 1986. The meeting was attended by senior management personnel including Mr. C. G. Friday, Manager of the ;iOHIP office at Sudbury and, on the side of the Union, Mr. Slee and the Grievor who was then, !i and still is. the President of OPSEU Local 628. The Minutes il of that meeting, which were prepared by Management, reflects the discussion which took place. )\ I! "Item 1 - Radiation Report on Terlninals Data Entry Terminals 2, 3 and;/4 in back row had a higher reading. After discussion Hr. Slee agreed to obtain trade name of shielding material from 8. natteo and approximate cost. ;'Possible that present shield inside left hand side surface of casing should be realigned or replaced. Mr.: Slee to contact Or. Sharma for recommendations on ;I procedure to shield terminals and will endeavour to have reply in one month." li ii II Dr. Sharma was contacted. He volunteered to see what could I) be done to provide shielding if one of the machines were loaned i to him for work in his laboratory. ip'. Sharma asked the Union to pay the cost of shipping a machin! to his laboratory and he, Dr. Sharma. would test a shield devic). install it and test the shield for emissions. Apparently, if. Sharma was prepared to do that work at his own expense, that if to say, without fee. ,. , - 5 - Mr. Slee said that a spare VOT was available at that time since it was not in use. He called, Mr. Friday, who' expressed enthusiasm for the idea; Mr. Friday is quoted as having said "Great. A good idea!" Mr. Slee agreed Lthat the Union would pay the shipping costs involved. ~About a week later, however, Mr. Friday called Mr. Slee stating that he would have to take the matter up with his head office in Kingston. Mr. Slee testified that he was told that the Sharma report would be submitted to the Ministry of Labour. In December 1986 Or. A,. M., Muc, Supervisor, Non-Ionizing Radiation Safety; Special Studies and Services Branch submitted a statement on the subject which turned everything around. Or. Muc said the following: "Report was reviewed and brief. conanents are attached. The reported measurements confirm the conclusion reached by RPS and other agencies, that there is no health hazard due to low level radiation from VOTs. Advice.to IHSB No action necessary. ,. Except for the "very-low-frequency vlf ( kHz - 3 MHz1 range, REMS dismisses all emissions as insignificant. For the vlf rahge REMS ignores the car.)-esponding limit cited in the'table on page 2 (100 mW/cm for which the equivalents are 600 V/m and 1.6 A/ml and makes' up its own - 25 V/m and 4 A/m at the viewing screen, 100 V/m. and 100 A/m at other surfaces except"for the .top where 30 A/m is accepted. However these limits are' irrelevant since for all the machines tested, the vlf electric and magnetic fields at 25 cm (about 10 inches) from all: surfaces' were reported as zero or negligible. Therefore worker exposures, are all zero or negligible and no further action is necessary. The ,extremely low frequency magnetic fields reported at 25 cm from the various surfaces of the VOTs are - 6 - comparable to the natural ambient magnetic field of the earth. The variabllityli probably results froa minimal enhanceemnts or cancellations produced by the terminals. Again no action!)is indicated.* /I I i\ Not surprisingly, Mr. Slee was (upset by this turn of events. II His unhappiness is reflected in a rletter which he wrote to Hr. Friday on December 18, 1986 which reais as follows: .I j ‘I received yesterday, a copy ;!of the report from A. H. Muc of the Ministry of Labour relating to the report of Or. Sharma on radiation emission from the video display terminals in your operation. Needless to say, we dispute Mr;. Muc's report and will 'be processing an appeal through the appeal procedure under the OCcupational Health and, Safety Act. Meanwhile, I %alieve that an' understanding exists between yourself and Local 6281) whereby an effort to determlne the feasibility of shielding this equipment mould be made. Further to that understandlng. an offer to shield, free of charge, one of the pieces of equlpeent was made by Or.;: Sharma and forwarded to you through this office. Should the cost of shipping be a problem, Local 628 has i)dicated a willingness to pay even this cost. J Therefore, given that you have al)study from a reputable scientist recommending that shielding take place, plus an offer to perform prototype shielding free of charge, so that the feasibility of shielding can be determined, I suggest that fai,lure to take advantage of the offer of prototype shielding would be unreason- able in the circumstances, and I'might well constitute a violation of Article 18.1 of the Collective Agreement. Further, I suggest such failure jould be also a breach of good faith. I trust therefore, that you will be fulfilling the conitments made earlier in this matter and will be so advising us in the near future.;; I would point out again, that Local 628 is prepared to pay for the shipping costs if such assistance is required by the Ministry." I I i - 7 - It will be noted from the third last paragraph of the letter quoted above that Mr. Slee was, giving some thought then to filing a Grievance for violation of Article 18.1 of the;Cqllective Agree- ment. Mr. Friday replied to fir. Slee on January 2, 1987 as follows: "This is to acknowledge receipt of your letter dated December lath, 1986. At the time of your verbal offer that' Local 628 was prepared to shield one of the pieces of equipment by Dr. Sharma, I conveyed to you that any. further action on our part was. after discussion and guidance from our Kingston Head Office. Accordingly I contacted' the Ministry of Labour on November 19th. 1986, regarding the report completed by RENS on VDT terminals. The Ministry of Labour inspector Mrs. 'Joanne Derks, met 'with ~. myself, Muriel 'Ethier, DPSEU President and Mrs. Doreen Peters, Administration Manager on December 11, 1986. and presented the Report Review from Dr. A. M. Muc, Supervisor ,Non-Ionizing.Radiation Safety Branch of the Dept. of Labour. This report states that there is no health hazard due to low level radiation from VDT's and,that no action is necessary. Based on this information from the Ministry of Labour, I would suggest we have taken all reasonable pre- .~ cautions, and on the basis of this report no further action will be taken. 'For your information a copy of this letter will be forwarded to the Dept. of Labour for their information." , Mr. Slee felt that the position t'aken by Or. Muc had under- mined wha‘t had been..previously achieved by the parties. The Union, therefore, appealed against the disposition *of the matter by Dr. Muc. An "appeal meeting" was held nn February 28, 1987 _ which was attended by representatives of ~management and labour - - 8 - at Sudbury and also by B. Thomson, Area Administrator, Industrial I' Health and Safety Branch, Ministrj of Labour, who obviously 1 attempted to mediate the dispute and,,bring the parties to a mutual agreement. Following the "appeal ()meeting" , Hr. Thomson wrote to Dr. Muc on March 2, 1987 as follow:: I I "I met with both union and man$gement representatives on Friday, February 20. 1987 in an effort to bring about a mutually acceptable solution. At the conclusion of the meetin; Mr. Peter Slee [Staff Representative, Sudbury Regional I)Office. Lasalle Blvd., Suite 2021, Sudbury, Ontario, P8A 1281 requested that the Ministry of Labour answer the following questions prior to his making a decision whether to continue with the Appeal. )I First, is the Ministry of Labour:, prepared to reconmusnd to the Ministry of Health that they should accept the offer of free testing by Dr. Sharma? Secondly, if the Ministry of Labour is not prepared to reconvnend the testing, they? would like to know why we would not proceed and are of the view that our report is undermining the 1.R.p. Could you respond to these questions either directly to Mr. Peter Slee or through my'loffice. This matter is also being grieved by the uni,,on under Article 18-l of the collective agreement with the step-2 meeting set for March 11. 1987. If possible, Peter Slee has requested our response prior to this meeting." 1; I Dr. MIX'S reply left no doubt patever as to his views. He responded on March 18. 1987: !I \( "The Radiation Protection ServicelJ has been intimately involved in investigating the ':various claims and allegations of radiation hazards from VDTs since well before the issue attained prominence in Ontario in the late 1970's and early 1980's. ; In all good conscience the Radiation Protection Service cannot "recozmnend anything that is considered to be I I I 1 - 9 - an almost total waste of time and effort. It is for this reason that the Service has not done any routine testing of VDTs for radiation emissions in over five years. We cannot ourselves (and indeed should not) expend valuable resources where we have. every reason to believe (as Dr. Sharma's own measurements have confirmed) that worker exposures are zero or negligible and consequently we would not "reconunend" that anyone else do so. In our view, the more testing that is done (even though nothing significant has ever been found) the more people are led to believe that there might be something hazardous to protect against. The Radiation Protection Service. fails to see how its assessment of the issue is undermining the I.R.S." (underlining added) DPSEU did not take too kindly to Dr. Muc's disposition of' the matter and the issue was appealed by the Union to the Director of Appeals pursuant to Section 32 of the Occupational Health and Safety Act, R.S.O. 1980, c. 321 and amendments thereto. The Director of Appeals exercised her jurisdiction under Section 1412)(g) of, the Act. As will be seen later; the Employer attaches great importance to the, decision of the Director of Appeals and we set out, therefore, at this point the provisions of Section 1411) and 14(2) of the Act. I 4.-(l) An employer shall ensure that. (a) the equipment. materials and protective devices as prescribed are provided : (b) the equipment. materials and protective devices provided by him are maintained in good condition; ; (c) the measures and procedures prescribed are carried out in the work place: ., _ (d) the equipment. materials and protective devices provided by him are used as prescribed: and (6) a floor. roof. wall. pillar. support or other part of a work place is capable of supporting all loads to which it may be subjected without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code .irt. - 10 - (2) Without limiting the strict an employer shall. (a) provide information, instruction and supervision to a worker to protect the healt,h or safety of the worker: (6) when appointing a supervik, appoint a competent . person: b (c) acquaint a worker or a peF;son in authority over a worker with any hazard m the work and m the handling. storage. use. disp&l and transport of any article. device, equipment oi:a biologxal. chemical or physical agent: I: Id) afford assistance and co-op&tion to a committee and a health and safety tepr&ntative in the carrying out by the committee andlithe health and safety representative of any of then functmns; ‘I (c) only employ in or about a w&k place a person over such age ss may be prescribe$ cfl not knowingly permit a p&on who is under such age as,may be prescribed to!;be in or about a work place : ‘I II k) take every precaution retinable in the circum- stances for the protection of p worker: and (I) past, in the work place, a c:py of thh Act and any explanatory material prep+cf by the Ministry. both in English and the majority langunge of the work place, outlining the rig?& responsibilities and duties of workers. !; ii (underlining added) /I The Union's case was supported bylithe evidence of Or. Kenneth Taylor, a physicist with the highest kedentials. The case for I! the Ministry of Labour was supported by the evidence of Dr. Muc. I' The decision of the Director of Appea:is sumafizes Dr. .Taylor's position in the following words: in I -.ll - "It was Dr. Taylor's opinion that the study of the effects of non-ionizing radiation is a new field which' needs further investigation. Dr. Taylor himself has tested VDTs for ioniting radiation and found that there is no problem in this area. He has not tested VDTs for non-ionizing radiation and has no knowledge with regard to the question of whether any specific level of non-ionizing radiation would have negatives' health effects on operators. or persons exposed to VDTs. Dr. Taylor suggested that there may be some phychological and physiological effects of exposure to VDTs'and that eliminating the non-ionizing radiation emissions with. shielding would satisfy the users of these devices. Dr. Taylor was not able to state that there was any hard scientific data to support this position other than the fact t,hat it would be a simple j technique not only to measure the levels but to reduce the emissions without high economic costs and that it would ma@ scientific sense to do so." Dr., Muc's position was firm. It is quite correct, we believe, to say that Dr. Muc was dogmatic in his position and he allowed : for no margin of error in his views. His evjdence is suasnarized by the Director of Appeals as follows: .- -~ "On cross-examination, Dr.: Muc abreed that standards for VDT emissions are just being'developed and that no~one knows with any certainty whether there are any detrimental effects at any specific level over the long term. However, without any data other than .,anecdotal material, Dr. Muc did not feel that there -is sufficient evidence to order that any action be taken. This position took into-account both Dr. Sharma's report and Dr. Muc's review of the scientific liter- ature. Dr. NC'S position was that this area is being actively pursued because there is a dearth of inform- ation and scientists are interested in expanding their knowledge in this field. Based on the scientific evidence in peer-review papers and conferences which he has attended and after consulting with other professionals knowledgeable in this area, Dr. MUC did not feel that there was any reliable evidence of detrimental e ec s ff emissions fromVFfs." (underlining added) - 12 - The foregoing positions were cl/Tracteristic of the postures adopted before us by both parties. (On the one hand, the Union's il expert witness sounds a warning that there may still be lessons II to be learned and calling for cautio) in order to avoid, however unwittingly, the possibility of cobitting injury to health. II On the other hand, the Employer's ex;yett witnesses express total confidence that there is nothing more)to be learned on the subject Ii and consequently no further need to take precautionary steps I to achieve reduction in radiation &issions. In fact,one of I the Employer's expert witnesses sawi further study or research ;( on the subject as being disturbing to the peace of mind of the ij ,employees in question! At any rate. the Director of Appials, who is a lawyer, con- cluded as follows: "There is no hard evidence before&m to say that there is a hazard in the workplace against which the employer should be taking reasonable precautions and it would be inappropriate to use this section of the Act in such a speculative manner. Of course, if scientific information comes forward such that there is scientifi- cally reputable information upon\ which to rely, at that time it would be appropriate to reconsider the issue. not However. in the absence oflsuch data, it would have been appropriate for the Ministry of Labour to order any employer or employee to take any steps with regard to this issue.' 1 I( (Underlining added) Ii J II - 13 - On January 14, 1987 the Grievor filed her.Grievance which is to the following effect:. "STATEMENT OF GRIEVANCE ' I grieve that the failure of the Sudbury OHIP admini- stration to take advantage of an offered free study into the feasibility of ,shielding the office's VOT equipment constitutes a violation of Article 18.1 of the Collective Agreement. SETTLEMENT DESIRED~ ' That the offered,feasibility be accepted and implemented by the Employer immediately." I. .’ ~. , The Grievance invokes Article 18.1 of the Collective Agree- ment hereinbefore set for~th at the beginning of this Award. Both sides introduced a great deal“ of technical evidence . ., before us. The Union relied'upon the evidence of Dr.' Karel Marha, .I a' Ph.D. ~* in physics with impressive ,credentials. The Employer called two highly qualified witnesses, one being Dr. Maria Ann : I* Stuchly, a Ph.D. in electrical engineering and Dr. -Alison D. : 1: ,:., McDonald, a Medical Doctor specializing in epidemiology and pre . and post-natal development of children. The Employer acknowl,edged _~ :: that Dr. Marha was an expert in his field. The Union acknowledged that Dr. Stuchly and Dr; M&dnald'were experts in their respective fields. ' . . 1 I. ., He were bombarded by' both sides with technical evidence F 'we had the expertise co decide which arguments' had the - 14 - I: greater valfdity. The difference in the conclusions drawn between 1 the experts is startling. The evidence of the Ministry's two (I experts was to the effect that there is no danger of radiation ;! exposure from the video display terminals. Their evidence was II that there is no greater danger from VDTs than there is from Ji exposure to electricity in the home; I' They concluded that there is absolutely no need for any more research on the subject. I) One of the Ministry's witnesses described such research as "a waste of time and effort". In fairness to them we point out II that they presented substantial research in support of their conclusions. (/ Indeed. both of the Ministry's experts participated II in much of the research. \ The expert witness called by th'e Union, li on the other hand, adopted a much less dogmatic approach. He refused to state !I categorically that video display terminals emitted radiation II which would have adverse biological (effects. Instead, he said that scientists should be punctuatjhg their research writings I/ with exclamation marks and' that they should be expressing a 1 caution or a warning to anyone who,; is studying the subject. Dr. Marha, II the Union's expert witness, stated that scientists s still do not know all that should be known concerning the physical effects of exposure to electromagnetic fields. I: He warned that the emissions from VDTs could have an effect on cellular activity; :I he was cautious to say that VDTs could -- not would -- have such adverse physical effects. Indeed, Dr! Marha stated that recent I) . - 15 - research would suggest that there must be constant ongoing testing and research. Dr. Marha pointed to recent experiments being carried on in six laboratories in Canada, Spain,. Sweden and the United States. The purpose of this set of experiments, which is known as Project Henhouse, was to examine the effects of a weak, low frequency, pulsed magnetic field on early embryonic development of the fertile chickens egg. Ne' referred us to a report published in the Bioelectricmagnetics Society Newsletter of May/June 1988 in which the following appeared: "Two of the six .laboratories demonstrated a significant increase in the incidence of developmental %Iormallt1es. Three of the remaining four laboratories maanetic i ,osure to the low-level pulsed ~-a~-- - .ield was found.. made to have ldentici While every attempt was Gnditions in .each laboratory, some variables could not be,controlled, and differences in the results between laboratories were observed. On the basis of all their results, the investigators in Project Henhouse have concluded that exoosure to weak pulsed magnetic fields, under certain conditions as yet undefined, can cause significant developmentai abnormalities in the chicken embryo." (underlining added) The importance of the experiment in our context is that the emissions to.,the baby chicks were similar to those emitted by video display terminals. Dr. Marha was careful to point out that one cannot extrapolate automatically that the biological effects on humans would be the same as those on baby chicks. We were also referred by Dr. Marha to an article published by - 16 - a scientist in Finland entitledl' "Measurements of extremely low-frequency magnetic fields video display terminals". The study concluded as follows: "In conclusion, the ELF magnet:c fields around a VDT are not hazardous to human health according to present knowledge. However, several :biological experiments suggest that also weak magnetic fi(ields may have biologi- cal effects with unknown mech.anisms. Additional biological experiments are necessary to contlrm the suggested effects and to find the mechanisms and dose- response relationships or these e~ttects." l (underlining added) Counsel for the Employer placed much emphasis on the decision Ii of the Director of Appeals under T,he Occupational Health and Safety Act which upheld the Minis&y's position. The action taken under the Act is not an impedim&t to our exercise of juris- - II diction which flows from Sec. 19 of the Crown Employees Collective Bargaining Act. 1 The Ministry asks us to apply the same onus II of proof as did the Director of Appealsllunder the Act. For reasons which follow we do not agree. I) - I Ii This Board has no hesitation in/ disclaiming competence to II make an informed decision as to wheiher or not video display terminals involve harmful radiation. i, Fortunately, in order to exercise our jurisdiction we do not have to make that decision and, indeed, we expressly refrain from &ing so. Our responsibility is to interpret and apply i j the relevant~ section of the Collective 3reemant between the parties -- Article 18.1. Counsel for the - 17 - Ministry seeks to impose a very heavy ,burden of proof upon the Union. We,have the advantage of. having received from counsel for both parties extremely well-prepared and researched legal submissions. The following excerpts from the submission of counsel for the Ministry state the burden which the Employer says must be discharged by the Union: "The union has failed to demonstrate a real or serious possibility of harm due to radiation from VDTs, and even if it had, there is no evidence to prove that the alleged harm would be reduced by the union's proposal to allow Dr. Sharma to design shielding." . ..there can be no enforceable duty to cooperate independently of a health hazard that triggers it. In the absence of a health hazard, there is no issue .requiring cooperation. If the union is dissatisfied with the employer's response to a perceived health and safety issue, it must bear the burden of proving that the risk of harm is a real and serious one, not a remote one, before it can enforce the duty of co- operation under the agreement. The union has failed to discharge that onus." "Furthermore, where the union seeks cooperation in a Very specific course of action, as it does' here, it bears the burden of proving that the proposed course of action would reduce the harm to health. The union has failed to do so by its failure to call any admissible evidence on Or. Sharma's shielding proposal." We do not agree that the Union must prove actual or real harm before Article 18.1 of the Collective Agreement can be invoked. Indeed, we find it surprising' that the Employer seeks to detach itself from the underlying problem and to impose the entire onus upon the Union. Surely the Union is entitled, in - 18 - the language of Article 18.1 of the Collective Agreement, to 11 co-operation fran the Employer "to thei/fullest extent possible...in the reasonable promotion of safety a$d health to all employees" without first having to establish thit a situation of proveable harm or damage exists. There are sim$ly too many incidents where the envirotxnent has been invaded by iunknown factors which have come to light only after the harm his been done. Ye do not - ;I agree that the Union must prove actue;pr real harm before Article 18.1 of the Collective Agreement can bc invoked. II 1, __-_ -, -- -. This question has beeh dealt wi;th previously by a panel of this Board in the case of OPSEU ((elen Barssl and The Crown in the Right of Ontario (Ministry of Education) G.S.8. File~345/81 (Jolliffel. I In fact, the issue in tha; case involved the safety of VOTs. That decision discussed th+, nature or extent of the burden which rests upon a Grlevor who aileges that a video display terminal Is unsafe or unhealthy. Ye?;can do no better than to quote the unanimous decision In Barss atlpp. 30-32: - ', "The intent of the legislation w& anticipated in the exhaustive review of arbitral jurisprudence made by Professor Palmer In Steel Co. of Cbnada Ltd. and U.S.Y. Local 1005 (19751 8 L.A.C. Ii!dl I; 375. After cltlng II II . . - 19 - numerous cases (which need not be repeated here) he made at page 379 ,the following Statement, with which we concur: It follows therefore, that in .fact there may be no serious danger; but; if it is possible for a reasonable person to come to this conclusion, that suffices to satisfy this point. Thus if a person is given advice, even if eventually shown to be incorrect, by,his doctor not to undertake certain act- ivity, such advice can be used as a basis for drawina the conclusion that a oerson was acting -reasonably in following it.' See Re U.A.W. Local 636 and F.M.C. of Canada Ltd. Link Belt Speeder Division (lY71), 23 . * . 4 (O'Shea). Professor Palmer then offered' the ~following qualifi- cations: Ii the same vein, where senior officials of. the employer, knowledgeable in the area, have given assurances of safety to a person; it tends to show a lack of reasonability. on the part of that person if he continues to refuse to do the work SO pronounced safe. See Gen'l ,Truck Drivers' Union, Local 879' and Guigley Construction Ltd. Llm 13 L A C . . . 45 (Revillel (. The final requirement in this area is that the grievor must, at the time of the refusal, communicate his reasons fork refusal to his employer... On the last two points above we are not persuaded that any person "knowledgeable in' the area" gave assurance of ~safety to Ms. Bars:. Mr. Ahrens did not testify, but the employer's expert witnesses said they-had re-' ceived no inquiry from Mr. Ahrens of his office. In this case of cdurse.the grievor as'ked that she be allowed to perform other ,duties. and the employer complied, so that the, question of "refusal" does riot' arise., Secondly, she certainly made her reasons clear, orally and in a detailed letter supported by Dr. Isenberg's recommendation. .I The facts here' are ~ve,ry different from those in the case decided by Professor Pilmer, but we thinkkthe tests he used are entirely appropriate. - 20 - II First, was the type of app$,ehended danger, whether real or imaginary, of sufficie()t seriousness to justify the grievor's request for a change of duties? As to this test, our view is that the grievor's fear of harm to her unborn child was indeed a serious matter, whether or not her fear had a basis recognized by scientists. Secondly. assuming for the moment that there was no real danger, did the grievor hyave "reasonable grounds" for believing that exposure ;o VOT radiation would put her child at risk? II Our answer to this question musi be in the affirmative. Every pregnant woman (unless she is a fool) consults her physician and is entitled Ilto rely on his advice, whether he be proved right qr wrong by subsequent inquiry. We cannot accept 'the argument that there is an onus on the employee in circumstances such as these to prove actual danger.\, The argument is not consistent with the provisions [Iof Article 18.1 in the collective agreeDlent. In any evient. it would be absurd to require an individual employee to mobillte all the scientific expertise available toJmanagement.' : II II We adopt the reasoning in Barss. We reject the proposition that 'I the Union has a "burden of proving 'that the risk of harm is a II real and serious one" or that the Union bears the onus of "proving that the proposed course of II action would reduce the harm to II health." Article 18.1 of the Collect{,ve Agreement cannot possibly be read as imposing such an onus up+ the Union. Article 18.1 imposes a joint obligation on 'both!ithe Employer and, the Union - II (to) co-operate to the fullest extent fossible...in the reasonable prMnotion of safety and health of a!1 employees". / It is fair to say that Article 18.1 imposes an onus of equal weight on both ;I the Employer and the Union -- to "co-dperate to the fullest extent possible II . ..in the reasonable promotion of safety and health of II L -'21 - all employees." Although we reject the standard of proof asserted by the Employer we 'say th,at even if the submission by counsel for the Employer should be correct then the Union ,has satisfied the onus by the ~nature of the evidence presented. by Dr. Marha. The Union's request was originally accepted by the Ministry as reasonable and if the Ministry had followed its own instincts the imnediate issue involved in this case would have, been settled a long time ago. The Union asked only to have one of the VDTs made available to Dr. Shana to enable him to make a prototype shield. Nothing else was asked by the Union of the Ministry. The plan was for the machine to be transported to Dr. Sharma at the Union's expense, and Dr. Sharma's work would not involve the Ministry in a p'enny of expense. The terminal would be returned by the Union to 'the Employer at the Union's expense. Truly, it was a "free ride" for the Ministry.~ We are of the opinion that it was absolutely unreqsonabl'e for the Ministry to deny the Union's request. Certainly, the hapless taxpayer would have been spared a great deal of expense ~if, in the language of Article 18.1, "the Employer and the Union (had) co-operated to the fullest extent possible". It may be that nothing will come of Dr. Sharma's .attempt to construct an effective shield but you never know unless you've tried. What .I find surprising is the lack of curiousity on the part of the Ministry which I consider to be inconsistent with the scientists' avowed quest for knowledge. We allow the Grievance. We direct the Mnistry to make available forthwlth to the Union a video display terminal of the type orlglnally contemplated fbr the experimental purpose herelnbefore described. The Union (i is II to complete its part of the arrangement In accordance with 1,ts original proposal to the ;I Minlstry Including picking up and deilivering the machine to Dr. Sharma and retumlng it to the Emp&yer when Dr. Sharma's work has been completed. ;I The Union is to! make Or. Sharma's findings available in full, without charge, to the Ministry together with )I the research done by Dr. Sharma. ift is our intent that the \' Employer should be provided with all; and any research which is 'I given by Dr. Sharma to the Union; I\ other words, we seek to ensure that both sides will extend $o-operation to the fullest extent possible". 11 li Ii We shall remain seized of this (matter in the event that I! any difflcultles should be encountered In Implementing this Decision. 'I I DATED AT OTTAWA this 2nd I/ day ofi bone, 1989. I! “I dfssint” (Dlsscnt attached) H. OOTo;jle. Member . . DISSENT C959/'ijl Although I am dissenting from the majority decision, I do so with some reluctance as the ,Employer Initially indicated a willingness to co-operate with the Union's proposal. The Zmployer's change of heart may be bad labour relations. slit this Soard is without jurisdiction to grant relief to the Union unless the Employer's withdrawal of co-operation constitutes a violation of Article 16.1. The majority decide that such is the case. However, S cannot avoid concluding that the majority -made several errors in reaching this decls'ion and I must therefore, respectfully dissent. . I shall first briefly summarize these errors and then discuss each ia detail. They are as follows: 1) 2) 3 1. The majority misstate the scope of the obligation imposed on the. Employer by Article 18.1; They misstate the onus to be discharged by the Union in proving a vloiatlon by the Employer of Article 13.1;. Their finding .that the Employer violated Article la.1 2s not supported by the 4 ,I weight of the evidenceland is 11\. a: clrcuaetances unreason≤ I The relief granted 12 :nappropriate as there is no reliable eiidence before the Board of its likely etrfcacy. Scow of Article la.1 Whlie the najorlty correctly state that there isa fo:nt I obligation on the Employer ,and the Union to co-operate, they 1: appear to lose sight of the word l+reasonablen In this Article ii which qualities the obllgatibn. I, It is submitted that "reasonable" is to be interpreted r$aving regard to the pmpose I! of the Article which is the protection of the health and safety or employees. I! Thls implies that t;e duty to co-operate is or.Iy operative where there is a reasom)le health or safety risk to employees . I (I ii ij :t is fmther submitted that "reasonable" :s to be :nterpreted ;I on an objective basis. In other wcfds it is not sufficient for the ,Cnlon to establish that it hesIan honest bel:eP that there Is a health risk. It must demonstiate some objective basis t0r I its bel:er. j/ 2 \ I! oniis of ?r00f The ma:ority at page I? f.lnd :t "surprisirig that the Employer seeks to detach itself from the underlying problem and to Impose the entire onus upon the Union. I’ I, in turn, am 'surprised by .this statement as it seems to contradict a fundamental rule of procedure, namely, that the party alleg:ng a breach of the collective agreement bears the tinus of proving :t, that is, establlshlng a prima facie case. The allegat:on 'In the grievance ls that the Employer breached its duty of co- operatfon under Article 18.1 . Accordingly, it seems straightforward that the Union should bear the "entire onus" on this point. This leads to the question .of. the appropriate'standard of proof to~'be applied. Clearly, the usual rule should apply, namely, proor on a balance of probabilities. What must be proved ? ~The majority correctly state what must not be proved at page - 17, namely, "actual or real &in." The'najority represent the foregoing as being the Eaploye- "'8 tormu:ation of what has to be proved. That formulation is set out verbatim by the majority at page I+. The key words mused are.'"a real or serzous possibility of harm due to rahiatlon from VDTs". According to my understanding possible harm is something quite differert from actual or real harm. It eeems clear to .me that the sa.jority has misunderstood the Employer's formulation of the 3’ standard of proof. ;R the process they set up a "straw man" and then proceeded to knock :t d&n by reference to the Sarss dec.lslon. I This begs the quest?on of what is the correct standard of proof. In my view th:l formulat:on o: the Employer, properly read, expresses the apprd'priate standard of proof. jl Nor do I see the Barss decision & being an authority against I! thls formulation. The facts In Biirss are qd:e dl,“terent from I’ this case. There the grievor's k-quest was based on her fear \I ror her unborn child as supported by a written medical opinion. II The Employer's response to,the gklevor's request included an I! assurance of safety but It was mad6 without any lnqiiries being !I made of medical or scientific experts. The latter was done only atter the filing or the grikvance. i( The Board in 3arss essentially found at page 32 that the grievor's fear was 1; reasonable because it concerned he; unborn child and because it was supported by a medical oplnlonz I\ In the Instant case pregnancy is not a consideration and before I! the filing of the grievance the grievor had not only the ll recommendation for shielding of Dt;. Sharma but an assurance of II safety by the Employer which was 'kupported by the unequivocal 'I written opinion 0r an expert, Dr\ Muc (see pages 5-7 of the maiorlty decision). Th.erefore, uijlfke u, here there were II prior to the filing of the grievance two competing expert !! opinions on the subzect matter of ihe grievance. I! I II I 4 II !I . . It necessarily follows that this Board cannot judicially assess the reasonableness of the Employer's rejection of shielding . without weighing the evidence in support pf each of the competing ~oplnions. This does not require the Board to make a definitive statement "as to whether or not ,video display termlnals Involve harmful radiation." Rather the Board is only required to state which opinion should be given greater weight on a ,balance of probabilities. In the past this Board has not hesitated in appropriate cases to weigh the evidence of scientific experts In drawing legal Inferences. Without so doing in this case the Board cannot effectively discharge the responsibility the majority themselves becognize at page 16 ", internret and abaly . . . . . Article 16.1." The Exsert Evidence Prlor to the filing of the grievance the only expert evidence relied on by the Union in support of the need for shielding was .the recommendation of Dr. Sharma of same as a precautibnary measure against fields which ?nay” be of “high enough magnitude at the surface so as to cause "adverse" hedlth effects." Dr. Sharma was not called as a wltness in these proceedings and so neither the scientific basis of his recommendations nor his status as an expert were proved in these Proceedings nor 'under cross.-examination. On that basis alone his opinion does not constitute reliable evidence. .:n these pro&eedings the Cnion relied upon the opinion of Dr. Marha whose"evidence is summarized at pages 14 and 15 of the 5 majority decision. As is pointed out at I sh:eld:ng on the sole basis that ‘I the could have an etrect on cellular acti statement of a mere possibility, not probab:lity. Moreover, Dr. Marhe referred to the concl by a scientist in Finland, set out at pa, dec:s:on. as conf lrming his opinion. contains a positive sta:ement that “the around a VDT are not hazardous to. humer 1ij present knowledge." While the study fields “may heve blologlcal effects with it does not suggest that they are neces: does it recommend shielding but only ” experiments” to identify these effects. ?age 14 he supported emissions from VDTs ity; “. This is a even approaching a sion of a study made I 16 of the majority In fact t-he study ELF magnetic fields health according to scognizes that such mknown mechaoisms”, Irlly “adverse”, !lOF iditlonal biological Zn the result the expert evidence adduced by the Union and I! relied on by the majority is at best equikvocal in support of 1 eSleld:ng and then only on the basis Ofi) “poes:ble” adverse health e’fects. & I: 1 Xn contrast the evidence of the two experts relied on by the I’ Employer and summarlzed at page 14 was unequivocal “that there il is no danger of radiation exposure irony the video display I terminals n and so no need, ror shielding. 1.n sum their opinion Ii amounted to a scient:f:c “certainty” of/I no adverse health \I effects. II 6 The majority appear to discount the expert opinion relied on by the Employer as mdogmatic" despite the .fact that It was supported by "substantial research" of which the majority'offer no critichm. Instead, they prefer the expert evidence of the Union notwithstanding that, at'most, it can only estab.lish the mere possibility of harm. It is submitted that in law a bare possibility is too remote to constitute a "reasonable" risk that triggers the Emp~loye.r*s duty under Article 13.1. In support of this proposition I need only point out that an employer may not bar an employee who has recovered from an injury from returning to, work based only on the mere possibility of a recurrence .of his injury. (see m International Nickel Co of Canada Ltd. ((1974 7 LAC (2d) ~196 ( Rayner ) ) it 'seems logical that the converse of the above should apply, namely. that an employee may not refuse or otherwise challenge work based solely on the' mere possibility of harm. The majority appear to reject the converse based~ on the fallowing statement at page 18: "There are simply too may incidents where the environment has been invaded by unknown factors which have come to light only after 'the harm has been done." 7 r ;I The foregofng : t s not at all applicable to thls case as the tac-.or here /( is known and as no,, harm has been shown to be II ::kely. c in my opinion the evidence adduced) at the hearlng, when weighed according to the groper standard, 1 ‘can only support a finding of II 20 reasonable risk of harm to ‘&nployees )! from VDT radiation rendering ArticJe 18.1 inoperative,/ in the circumstances. T?re Relief Oranted ‘1 I 3 allowing the grievance the ma{ority order the Employer to provide a terminal to Dr Sharma for the design of appropriate II shielding. 3ut there was not a t’;:ttie of evidence cor?cernir?g I! Dr. Sharma’s expertise in the d&sign of MT shielding other II than his having volunteered to do so. 11 Accordingly, there 2s no reliable evidence to support l,the relief granted by the il 3a;ority. 1 Ii 1; For all the foregoing reasons =’ would have dismissed the Ii grievance. M!/ F. O'Toole - Member ;i (: (j 8 / j I/