Loading...
HomeMy WebLinkAbout1988-0982.Dowhey.91-10-25 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1~10 DUNDAS STREET WEST, 5UtTE 2100, TORONTO, ONTAR[Q M5G IZ~ TELEPHONE/TELePHONE.. (416j 326- ~388 180, RUE DUNDAS OUEST, BUREAU 2100. TORONTO (ONTAR$O). M5G ~,78 FACSIMfLE/TEL~-COPIE : (4;'$) 325- ~396 982/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE ORIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Dowhey) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer ,BEFORE: A. Barrett Vice-Chairperson J. McManus Member G. Milley Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager Staff Relations & Compensation Ministry of Correctional Services HEARING: June 20, 21 1990 October 19, 1990 November 14, 1990 This is an individual grievance of Edward Dowhey, a correctional officer at the Toronto (Don) Jail since 1973, who grieves that the employer has failed to provide him with a healthy work environment due to the contaminated and ineffectual ventilation systems in the jail. The grievance is dated September 6, 1988, and relies upon Article 18.1 of the collective agreement which is reproduced below: 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 and the Union 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." The hearings in this matter spanned four days and we received much expert and technical evidence concerning the out- moded heating, ventilation and air conditioning system in the jail, and the causal connection or relationship between poor air quality and the grievor's allergies which affect his upper respiratory tract causing symptoms of coughing, dryness in the throat, red burning eyes, runny nose, and headaches. It is not disputed on the evidence that the jail was built in 1955 to house approximately 212 inmates, and appropriate numbers of staff. Today it has about 600 inmates and proportionately increased numbers of staff. It is a sealed building, which means the windows don't open, and therefore the quality of the air must be regulated by the heating, ventilating and air conditioning system (HVAC). The present HVAC system was installed in the early 1970's and is nearing the end of its useful life. An engineering report recommends that the ventilation capacity be doubled. The system needs a complete retrofit which will cost more than one-and-one-half million dollars and is scheduled to proceed shortly (although due to financing considerations, no one seems to know precisely when). Complaints have been made through the health and safety committee (of which Mr, Dowhey has been a member since 1982) about the air quality in the jail and various testings of the air and air ducts have been performed by the Ministry of Health, the Ministry of Labour, and contracted engineering firms. The first air tests were performed in December 1984, and they revealed high levels of carbon dioxide (CO 2). It was discovered at that time that some fresh air dampers were closed. They were corrected and the air quality improved to acceptable CO 2 levels. Nevertheless comDlaints continued and, in 1986, Dre-heat coils were installed, which means the system can now be run with 100~ fresh a~r in the winter~ although it can only handle 25 to 30~ fresh air during the heat of the summer. Air sampling was done in 1985, 1986, 1987 and 1988. Early in 1988 the air ducts underwent a massive cleaning, apparently for the first time. Huge amounts of dirt and mould were removed. Regular duct cleaning is now scheduled to take Place every two years, although in October 1990, the 1990 cleaning had not yet been performed. Preventative maintenance of the system is now double that of a regular office building. Thus, improvements have been made in the latter half of 1980's and air quality is Within Ministry of Health guidelines. Mr. Dowhey and other members of the staff are still not happy with'it, however. Second-hand smoke is a significant contributor to Door air quality in any building. Apparently, ~0~ of the inmates at the Don Jail smoke, and it appears that it is considered too risky to inmate control to ban smoking. Second-hand smoke, and in Mr. Dowhey's case first-hand smoke, is a substantial contributing factor to poor air quality in this building. It is understood by all concerned that the proposed retrofit of the system is the best (and most expensive) way of ensuring comfortable air quality for the present and future life of the jail building. The grievor has a much higher than average history of absenteeism from his employment at the jail. He blames a lot of it on the poor air quality in the jail which aggravates his allergies, causing the symptoms described above. His allergist, whom he has seen once every year or two since 1975, testified that the grievor was allergic to many of the fungi and mould growing in the duct system before it was cleaned. The grievor is also allergic to a variety of other allergens such as pollen, feathers, animal fur, some foods, etc. In addition, the grievor smokes about one-and-one-half packages of cigarettes per day, and the cigarette smoke acts as an irritant to exacerbate the symptoms caused by other allergens in the air. By way of remedy in this case, the union requests a declaration that the employer has not taken reasonable precautions for the health and safety of Mr. Dowhey; that we stipulate the measures management must take to bring the HVAC system up to acceptable standards (that is, that we order the retrofit to be accomplished by a certain date); that we order that in future the union be entitled to test the air quality at its own instance four times Der year: and that we grant damages to the grievor for the loss of his sick pay and vacation credits that he has used up to cover his extensive absences. Although the grievor's allergist was called to give evidence, his family doctor was not. The family doctor had given him various medical notes throughout the years to excuse his absences from work. Many of these notes did not state what the illness was that occasioned the absence. Other notes related to a gal/bladder problem, blood pressure problems, flu, food poisoning, a work-related injury, and a variety of other things° All in all, the doctor's notes ascribe only 25 days of absence distributed over five occasions spread out over a total of seven years between April 1982 and September 1989 to respiratory problems. Although we are inclined to speculate along with Mr. Dowhey's allergist that the quality of the air in Mr. Dowhey's workplace contributes to his allergic symptoms, we are unable to find on a balance of probabilities that the air quality in the jail is a major caDse of Mr. Dowhey's symptoms. The major duct cleaning occurred in early 1988, before the date of the grievance, and it was the ducts that were said to contain the worst pollutants. Mr. Dowhey's symptoms did not appreciably improve after the duct cleaning, nor do they appear to have been much affected by the other improvements that have been undertaken since about 1985. His symptomatology is not seasonal, although the air quality is worse in the jail during the summer than in the winter. Slow but steady improvement in Mr. Dowhey's symptoms has been accomplished by the regular allergy medication he has been taking since about 1978. According' to his allergist, Mr. Dowhey's condition is "well under control and has been since about 1982." Pursuant to Article 18.1 of the collective agreement, the employer has a two fold obligation to its employees. It must make reasonable provisions for their health and safety and it must co-operate to the fullest extent possible in the reasonable promotion of safety and health. Of course, what is "reasonable" is open to interpretation in the multitude of contexts that may arise in the workplace. An employer cannot reasonably be required to.Guarantee the health and safety of the workforce. The employer must make reasonable provisions and take reasonable precautions against harm. What is reasonable must be measured against some objective standard. The employer is not required to create an atmosphere conducive to the ultra-sensitive or accident-prone, for instance. $ome, evidence was led by the union that other employees have developed respiratory problems as a result of the poor air quality at the jail. Dr. Warren, Mr. Dowhey's allergist, tested twelve other employees who complained of respiratory problems and found that they were as allergic to various mould and fungi as. other members of the general population would be. A nurse in the health unit'testified that she had developed respiratory problems since her employment in the jail~ but since smoking was banned in the health unft she is much better and her symptoms now only occur when she is working in the smoking areas of the jail. We have to keep in mind that this is 'an individual grievance, not a union policy grievance, and that while banning smoking in the entire jail'would most definitely improve the air quality for all employees and inmates, it would not nec~ss~r±ly assist Mr. Dowhey with his allergic symptoms because he smokes himself. It is Mr~ Dowhey with his in-born predisposition to allergies and his smoking habit who is the grievor here. The employer is not required to achieve an ideal work environment, but one that will be healthy for most of the people most of the time. The purpose of health and safety committees is to identify potential health and safety problems and to work together on improving or eliminating them. In fact, that was done in this case. Mr. Dowhey brought his concerns about the air quality to the attention of the health and safety committee in 1982, and action was taken through that committee. Most of the improvements made in the HVAC system in the latter half of the t980's and most of the air inspections and engineering reports were inspired by the concerns and evidence gathered by the health and safety committee, of whom Mr. Dowhey was a member. None of the Department of Health, Department of Labour, or engineering reports that were commissioned stated that the health and/or safety of employees was at risk. High CO 2 levels in a workplace create discomfort in building occupants on a sliding scale according to the degree of cqncentration of CO 2. With one exception in 1984, noted above, the CO 2 levels in the jail have always been within "acceptable" limits~ but not "ideal" In result, we cannot find that the employer has failed to make reasonable provisions for the safety and health of Mr. Dowhey, nor that the employer has failed to co-operate to the fullest extent possible in the reasonable promotion of Mr, Dowhey's health. Accordingly, the grievance is dismissed. DATED at Toronto this 25th day of October, 1991. ANNE BARRETT ,~ce-C~alrperson "I Dissent" (dissent attached) JOHN McMANUS, Member £ IN THE MATTER OF AN ARBITRATION BETWEEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION MINISTRY OF CORRECTIONS Grievance # 982/85 Dowhey O.P.S.E.U.# 88C469 DI$~;ENT Unfortunately, I am not able to agree with the majority decision. The majority to me have been influenced by the fact that the grievor is a smoker and that it was somehow necessary to find that the grievor's physical condition and problems are related to the air quality at the jail and not to his smoking. It seems to me that whether the grievor is, or is not, a smoker does not distract from the fact that he is entitled, like everyone else at the jail, to the benefit of Article 18.1. I do not doubt that the obligations under Article 18.1 include the obligation to provide a reasonably adequate ventilation system in a sealed building with a high percentage of second hand smokel A reasonably adequate ventilation system surely must be one that provides the occupants with air of a reasonable quality. The evidence was overwhelmingly, in my view, in favour of the conclusion that the ventilation system was inadequate and had been for a number of years. Let me summarize my notes on this point: (a) The employer had admittedly failed to clean the duct system for over 18 years. Mr. de Franco, for the employer, admitted that a reasonable owner of a building would clean the duct system regularly and that he was not surprised by the report of the cleaning contractor (Exhibit 12) which stated: We found the duct work in an extremely dirty condition, almost to the point of being obsolete in many areas. The build-up of dust was such that there was little or no airflow in many cells and common areas. Surely, we cannot find that an employer that has permitted the duct system to g~t into this · condition has "made reasonable provision for the health and safety of it's employees" as required by Article 18.1. (b) The Crossly report shows that the system has the capacity for 212 inmates. It is now operating at 71 percent of its capacity, while the inmate population has increased to over 600 inmates. Crossly also states that ~adequate capacity' requires an increase beyond the design capacity of 148 percent. In other words, the capacity required for this building is approximately double what is now being provided. (c) The Ortech report found a higher than normal concentration of total micro-organisms. (d) Dr. Warren's report concluded "that the air quality would not' be considered adequate in either 1985, nor at the time that the survey.s were done on December 9, 1988 or January 25, 1989L ..... /3 (e) Mr. Pilger, the industrial hygienist called by the Union, on page 1 of his report (Exhibit 5) stated the conclusion that "the available information indicates that air quality at the Don 1ail is inadequate for its present occupancy, according to current ventilation and air quality guidelines" and at page 13, he states "the limited data by Ortech International in their two reports dated Jan. 4.88 and Feb. 6. 88 suggests that indoor air quality at the jail was unacceptable on Dec. 9. 88. While improvements appear to have occurred between the two surveys, they do not show a dramatic improvement. ~ (f) Management called no witnesses to testify to the effect that the air quality during the period under investigation was adequate by any standard. A report of the Ministr~ of Labour was filed, but no one was called to testify to it. We can hardly rely on this report because the ministry did not test for a smoke filled environment like the Toronto Jail. On this point, Mr. Pilger's report (Exhibit 5) Page 10 stated: Carbon dioxide is a useful indicator of air quality in offices where only moderate smoking occurs because, in the absence of combustion, the only source indoors is occupant breathing... In buildings such as correctional facilities where smoking is more prevalent that in typical office buildings of a decade ago, where the general standard of personal hygiene may be lower or where other significant sources of air contaminants may be present, carbon dioxide concentrations may not correlate as well with general air quality... Unfortunately, if these limitations are not understood, too much emphasis may be placed on comfort parameters and 0)2 levels with the result that legitimate complaints of poor air quality may be dismissed. (g) While management did not call any evidence to suggest that is air quality was adequate, it did acknowledge that a complete retro fit of its ventilation system was required as recommended in the Crossly report. Faced with the above evidence, including Management's own admission and the absence of any evidence to the contrary, are we not obliged to conclude that the air quality in the jail, at the time of the grievance, ..... /4 was not up to community standards? Surely this is the first decision we must make in order.to deal with this grievance. As noted above, I believe this issue was effectively decided for us by the admission of Management. If we conclude, and the evidence seems to leave us with little option, that the air quality was not adequate, we then have to decide if management took reasonable .provision to correct the situation after it was made aware of it. if not, then Article 18.1 has been broken. Management's Action · The question is, did management's steps meet the standard of expedition required by 18.1. The words in Article 18.1, which indicate how fast Management must move, are: 'the employer shall continue to make reasonable provisions for the safety and health of its employees ' 'the employer and the union shall co-operate to the fullest extent possible.., in the reasonable promotion of safety and health of all employees' The employer, for the purposes of the collective agreement, is the CROWN IN RIGHT OF ONTARIO. It' is not the Ministry of Correctional Services nor is it the Ministry of Gove~'nment Services. Ministries have no status separate from the Crown. Thus the Crown as a whole bears the obligation under Article 18.1. Accordingly, the Crown, the "employer" in the collective agreement, cannot escape responsibility merely because one Ministry passes the buck to another Ministry. If this were allowed, there is no provision in the collective agreement that could be affectively enforced by OPSEU. So, if we conclude, as surely we must, that the employer named in the collective agreement is the employer which must discharge the obligation required by Article 18.1, we have to decide if that employer has acted with the expedition required by the Article. On this point we have received a request from Counsel for the Union to receive additional evidence. It relates to the employer's action or, more aptly, in-action since the hearing. Now that we have received this application we must give the Union an opportunity to present its evidence and make its submissions. This is required by s.20(8) of the CECBA. In addition to this statutory requirement, I believe that the evidence of Management's steps, or lack of steps, since the hearing took place will be useful for us to assess the evidence that we have already heard as to the sluggish response of the employer to the need for a retro fit when it received the Crossly report in early 1990. Indeed, the report recommended the work be done. In June of 1990, at the first hearing date, Mr. Benedict told us that a contractor was engaged to retro fit the system. However, in September 1990 Mr. de France was testifying and stated that Management, in June, had only decided to hire a consultant to undertake the responsibility of implementing the work. He could not say if anything had actually been done in response to this decision. Surely a management decision without any timetable for action does not qualify as 'reasonable provision". Nothing has been provided for. An award that permits this stands for the ridiculous proposition that a decision without any enforceable plan to implement that decision is sufficient. If we, as a Board, accept a decision from Management without imposing a timetable for its implementation~ we are depriving Article 18 of all meaning. We are simply not enforcing the rights given by Article 18. Next, I turn to the grievor's request for damages. Even though the grievor is a smoker, he is entitled to his rights under Article 18.1. The fact that he smokes, however, while not relevant to whether his rights have been met, is relevant to his claim for damages as a result of a breach of Article 18. The ..... /6 problem I find with the majority award is that it has allowed the problem respecting the grievor's damages to interfere with the determination of his rights. With respect to the question of the grievor's damages and whether or not his problems were contributed to by the poor afl quality, the only evidence before us is that of Dr. Warren. He attributed some of the discomfort to the air quality. It is not disputed by the Union that the grievor's smoking habits contribute as well. However, this does not rule out the contribution made by the inadequate ventilation system. There being no evidence to the contrary, I am simply at a loss to know on what basis, on the evidence, we can conclude that because the grievor smokes, the poor air quality did not affect his health. For all of the foregoing rea~ns, I would have upheld the grievance. Board member: I. McManus