Loading...
HomeMy WebLinkAbout1989-1007.Leach et al.97-03-17 ,~ ..ii . ..:.: ~. ONTARIO EMPLOYI~S DE LA COURONNE " "'" · ", · CROWN EMPLOYEES DE L'ONrARIO ':' "' '" ...... ~' GRIEVANCE COMMISSION DE SE'I'I'LEMENT R~.GLEMENT BOARD DES GRIEFS 1~DUNDAS$~E~WE$~$UITE21~TORONTOON M~ 1~ ~PHONEt"~PHONE: ~I~320-1388 1~ RUEDUNDASOU~BUREAURl~TORONTO ~M~ 1Z8 FACSI~CO~E: ~1~320-13~ GS~ # 1007/89, 1133/89, 2057/90, 2619/90, 2620/90, 2622/90, 2668/90, 2758/90 O~S~U # 89D355~ 89D623~ 90S187~ 91B216, 91B217-8, 91~219, 91B220-3, 91B272 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BAR~AININ~ ~CT Before THE ~RIEVANCE SETTLEMENT BOARD BETWEEN ':¥i OPSEU (Leach et al) Grlevor .. - and - The Crown in Right of Ontario (Ministry of the Solicitor General & "CorrectiSnal Services) :' Employer BEFORE= A. Barrett ' Vice-Chairperson T. Browes-Bugden Member D. Nontrose Member POR THE N. Coleman ~RIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Blight EMPLOYER Counsel Genes=, Murray, DesBrisay, Lamek Barristers & Solicitors HE~RING April 20, 1994 June 8, 1994 October 18, 1994 April 3, 4, 1995 September 7, 8, 1995 October 26, 1995 December 13, 20, 1995 April 12, 30, 1996 DECISION This is a decision on a motion by the Union for an order directing the Ministry .to permit certain additional air quality tests to be conducted at the Whitby Jail, at the Ministry's expense. About 50 individual grievances were initiated during the period 1989-1991 by employees of the Whitby Jail all alleging a violation of Article 18 of the collective agreement in that their health and safety were endangered by the heavy concentrations of environmental tobacco smoke (ETS) in the institution. By way of remedy the grievors request a smoke-free workplace and (unspecified) financial compensation. At the Whitby Jail up to 90 percent of the inmates smoke and are permitted to do so at will in their living areas. Correctional Officers who work in the area have only bars and grilles between them and the second-hand smoke. During the grievance procedure the Union requested that air quality tests be performed in the jail, and entered into negotiations with the Ministry for a testing protocol. The parties and their expert consultants toured the jail and eventually agreed upon a protocol, although the Union expert wanted more tests performed than were agreed to by the Ministry. In the Fall of 1993, before the testing could take place, the Ministry renovated the heating', ventilating and air-conditioning system and the testing was deferred until after the renovation was complete. The tests were finally performed on two days in late June and early July, 2 1994, by the Ministry of Labour, with the Union's expert, Dr. Walkinshaw, in attendance. The Ministry of Labour issued its report on October 13, 1994. The Ministry uses carbon dioxide measurements as an indicator of the effectiveness of indoor mechanical ventilation systems. The current comfort guideline is 1000 p.p.m. The Ministry noted that the majority of samples registered concentrations under 1000, with only two samples slightly exceeding the ~guideline. The Ministry noted that, on the first day of testing when the two high readings were taken, a damper on the HVAC unit was improperly set to allow in too little fresh air, so higher readings could be expected. The Ministry noted high readings of respirable suspended particulates (RSPs) on both days and noted the positive correlation between RSP and nicotine readings. The Ministry did not provide a rationale for why RSPs were higher on the second day of testing when the ventilation rate was much improved. Dr. Walkinshaw, utilizing different standards, observed that the test results demonstrated that there is a hazard from ETS exposures in the cell/guard areas of the prison at both low ~nd high ventilation rates. To Dr. Walkinshaw, the data showed that the prison ventilation systems are inadequate, but their impact on ETS contaminant concentrations is not yet fully understood. Dr. Walkinshaw indicated in his report that in order to ascertain the extent of the ETS hazard at the Whitby Jail and the effectiveness of the ventilation system in alleviating the hazard, certain further multi-pollutant investigations should be carried out. He recommended the following further testing: a) percentage make-up air in each AHU. b) pressure difference across the building envelope at different elevations. c) mold (7 or more samples). d) radon (4 day log in basement). e) volatile organic compounds (VOCs using FID and GC/MS). f) carbon dioxide (one week log in return air). g) temperature (one week log). h) relative humidity (one week log). i) respirable suspended particulate (RSP) counts as well as weights (accounting for humidity variation effects, if any). j) assessment of indoor air quality at two different ventilation rates. The Ministry's expert does not believe that any further testing is necessary. Mr. Piersol, for the Ministry, reviewed both the Ministry of Labour report and Dr. Walkinshaw's commentary on it, and concluded that further testing at this time was not necessary. Dr. Walkinshaw had noted that there were significantly anomalous results in the two days of testing, especially with respect to RSPs and carbon monoxide samples. The percentage of fresh make-up air was doubled for the second day of testing and the air quality should have improved in substantially the same proportion. Instead~the air quality was substantially worse on the second day of testing. Mr. Piersol agreed that the air quality should have improved substantially on the second day of testing and that the result was anomalous. Mr. Piersol thought that the samples provided sufficient evidence of poor air quality due to ETS to be of concern and to warrant remedial action. Mr. Piersol recommended 4 that additional testing ]night be warranted after changes to the ventilation system, but nothing of substantial importance could be learned from more testing now. No evidence was led by the Employer regarding any changes to the HVAC system being planned by the Ministry. Mr. Piersol agreed that the tests recommended by Dr. Walkinshaw would be helpful to measure the effectiveness of the ventilation system. On the motion we also-heard evidence from Mr. Burke, the Ministry of Labour expert who conducted the tests. Mr. Burke was not a compellable witness at the hearing but he attended voluntarily, with his counsel, to assist this Board in its enquiries. With respect to the appropriate ventilation rate standard to employ, Mr. Burke indicated that he used the Ministry- approved "cell and guard station" standard, as opposed to Dr. Walkinshaw's proposed "smoking lounge" standard, but that his personal opinion regarding the appropriate standard might be otherwise. Mr. Burke testified that the Ministry of Labour was technically unable to carry out the tests recommended by Dr. Walkinshaw. It should be noted here that Mr. Piersot and.Mr. Burke were recognized as experts with respect to air quality only; Dr. Walkinshaw was recognized as an expert with respect to .air quality and ventilation systems. From the Employer's perspective we should advance this hearing to the merits of the case; establish appropriate air quality standards; order the Employer to meet those standards, if necessary; and then re-test. The Employer's position is that further testing at this point would only overly complicate the matter and simply generate additional data to confirm other data. The Employer argues that when the source of the problem has been identified, as it has in the Whitby Jail, it is not necessary to conduct an extensive audit in order to determine whether there may be other issues. The cost and disruption to the jail which would be brought about by further extensive testing must be justified as being necessary to assist this Board in determining the central issue: Whether the environment in the jail does in fact present an unreasonable health and safety risk to the employees. The Employer submits that no further extensive testing ought to take place until any remediation plan implemented by the Employer, or as a result of any order by this Board, is put into place. This Board convened for a total of 15 days to hear evidence and argument on this preliminary motion. For most of those days, the parties' expert witnesses were present, either instructing counsel, or testifying. We feel compelled to comment on the expense involved in presenting this motion. We could not help but think that the experts might be better deployed testing the air, rather than talking to us about testing the air. It is true that much of this evidence will be relevant and necessary to our determination on the merits of this case. However, we think that some of the time, money and expertise expended on this motion might more fruitfully have been put to work in the jail. We do not intend to analyze the mass of scientific information we received' on this motion: a more detailed analysis will be 6 necessary in our final decision. Suffice it to say that on all of the evidence of all of the experts, we are drawn to the conclusion that the testing that was.performed did not adequately assess the efficiency of the air handling system. Furthermore, point-in-time measurements proved themselves inadequate to deal with all of the variables in the institution. The anomalies that revealed themselves in the results of the first and second day of testing cannot be ~xplained away other than by conjecture. Further testing is required. The Employer resisted these further air quality tests on the basis that they would cause disruption in the jail and would be very costly. Significantly, no evidence was led on either issue by tke Employer. We do not choose to speculate on those issues in order to find in favour of the Employer. If they were serious concerns, evidence would have been led to support them. Accordingly, we order that further testing take place at the Whitby Jail by a mutually agreed-upon neutral qualified party. The testing shall be carried out over a period of one week, or such other period as may be determined by the neutral expert. The neutral expert shall be guided by the previous Ministry of Labour protocols and the recommendations of Dr. Walkinshaw as set out above, except where deemed by the expert not to be necessary, to adequately ascertain the extent of the ETS hazard at the Whitby Jail and the effectiveness of the ventilation system in alleviating any such hazard. The costs of this testing are to be borne by the Employer. We heard some speculation at the hearings tha~ Ministry policy may evolve to eliminate smoking in jails, and if that occurs before the testing is completed, the test results will be rendered moot and need not be performed. The agreement to a neutral expert and to the subsequent testing must be completed within a reasonable time. We are not prepared at this point to stipulate the time frame, but will remain seized of jurisdiction in the event there is any difficulty implementing the award. Dated at Toronto this l?th day of March, 1997. .?. B r ow e s - Bud~n, ~Mjmb.e.r/ D. Montrose, Member