HomeMy WebLinkAbout1981-0345.Barss.82-01-21 t
ONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
180 OuNOAS STREET WEST, TORONTO. ONUR10. M5G IZ8-SUITE 2700 TELEPI-IOVE; 4161598-0688
343/81
IN THE MATTER OF AN ARBITRATION
Lander
THE CRONT EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU. (Ms. Helen Barss) Grievor
- And -
The Crown in Right of Ontario
(Ministry of Education) Emplover
Before : Mr. 'E. -B. Jolliffe, Q .C . Vice Chairman
Mr. J. McManus Member
Ms . H.. J.' Laing Member
For the Grievor: INir . G. Richards
Grievance/Classi=ication Officer
Ontario Public Service Employees Union
For the Employer: Mr. M. P. :Moran, Counsel
Hicks , Morley , Hamilton, Stewart & St:rie
Bearings : September 29 and October 1 , 11081
"RE: HINTED - :March 1982 "
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D E C I S I O N
The events giving rise to the grievance off Ms . Helen
Barss are set out in an agreed Statement of ractsfiled by *_ e
parties when this case came on for hearing . The statement ,
Exhibit 2 , is as follows :
1. Helen Barss is employed by the Province of Cntario
in the Ministry of Education.
2. Prior to April 6, 1981, Ms. Barss was employed as a
Data Processing Technician at a salary of $286.31 per
week.
3. In this position she was required to operate a video
display terminal for approximately 4 hours per day.
4. Cn March 30, 1981 Ms. Barss approached her supervisor,
Mr. R. Battison, and told him that she was concerned
about her own health and that of her unborn child (she
was approximately 5 months pregnant at that time.) and
that her doctor had recommended that she should not
operate a video display terminal. She requested that
she not continue operating the V.D.T.
5. Mr. Battison removed Ms. Barss from the V.D.T. and had
her perform only the clerical duties of her job pending
a decision on her request by his supervisor. The V.D.T.
part of her job was performed by other Data Processing
Technicians. Mr. Battison explained that he had no
authority to grant such a transfer.
6. The following day after consulting with his supervisor
Mr. Battison informed Ms. Barss that if she wanted a
transfer away from the V.D.T. work she was to put it in
writing and attach supporting information.
7. Cn April 3, 1981 Ms. Barss met with qtr. Battison and his
supervisor, Mr. Ahrens, at which time she was informed
that:
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a) in response to her temporary transfer request,- t-he
branch was prepared to transfer her to a position
of records clerk which she had held until April 1,
1979, since she knew that job;
b) during the time of the transfer her salary would be
$267.34 per week, the maximum rate for that position;
c) the transfer would be for the duration of her preg-
nanhy at which time she would return to the position
of Data Processing Technician.
9. Mr. Ahrens confirmed the arrangement with Ms. Barss at the
April 6 meeting, by memo dated April 6, 1981. Copy attached
as Schedule 2.
10. Ms. Barss was informed on numerous occasions by Ministry
officials that there was no danger to her health or the
health of her child, from radiation from the video display
tezininal.
The schedule attached to the Statement of Facts will
be quoted separately.
In her grievance dated May 6 , 1981 , Ms . Barss com-
plained of "loss of income by virtue of being demoted to Clerk
2 General;=°' and referred to Article 18 .1 in the current
collective agreement , which is as follows :
The employer shall continue to make reasonable provisicns
for the safety and health of its employees during the hours
of their employment. It is agreed that both the 2nnlcyer
and the union shall cooperate to the fullest extent pcssible
in the prevention of accidents and in the reascnnable pro-
motion of safety and health of all ecrplcyees.
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The grievor also referred to Article 5 . 6 of the
agreement, which provides as follows :
Where, for reasons of health, an employee is assigned to
a position in a classification having a lower maximum
salary,- he shall not receive any salary progression or
salary decrease for a period of six (6) months after his
assignment, and if at the end .of that period, he is unable
to accept employment in his former classification, he shall
be assigned to a classification consistent with his condition.
As a remedy, the grievor requested reinstatement in
her salary scale as a Data Processing Technician 2 with no
pecuniary loss in respect of time worked from the date of
"demotion" until she took maternity leave .
The sequence of events recited in the Statement of
Fact was supplemented by the grievor ' s testimony . First
employed in August, 1977, as a filing clerk , she became a Data
Processing Technician in April ,, 1979 . In that post she ' spent
about half her working day at a Video Display Terminal , here-
inafter referred to as "VDT. "
In January , 1980 , the grievor learned she was
pregnant . However, it was not until March 30 that she saw an
article in the Toronto Sun referring to Bell Canada workers
who had won transfer to other jobs during pregnancy because
of their tear that VDT work would be hazardous to their unborn
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chilaren . Ms . Barss promptly consulted her physician , :.r .
Gerald Isenberg , who had not previously known about the
of her job. A letter dated April 2 from Dr . Isenberg ,
addressed to "to whom it may concern, " said : "I recommend
that Helen Barss be transferred from working on the Video
Display Terminals due to pregnancy, and possible risk to the
developing foetus . "
On April 3 Ms . Barss submitted the doctor ' s recommend-
ation to management together with a Letter of her own as follows :
To whom it may concern:
Due to recent publicity concerning the unknown hazards
of video Display Terminal Radiation on the development of the
maturing fetus, it is on the recommendation of my doctor's
advice that I am requesting temporary removal from exposure to
the VDT.
Research indicates that there is a wide range of radiation
which can escape from the VDT and that there have been recorded
cases where this type of incident has occurred.
Also, there have been noted instances of "an unusually high
rate of birth defects in children of women operating VDT's. "
Research has also revealed that "the developing fetus is partic-
ularly vulnerable to all forms of radiation".
It is for the above reasons that I do not wish to operate
the VDT for the remainder of my pregnancy, which will last t:ntil
July 3, 1981. I am concerned with the physical development of
another human being which has no choice in the matter of exposure
to potentially harmful stimuli which is emitted by the
Please understand that I am perfectly willing 'to refs-n to
work on the VDT after this pregnancy is over. However, I do fee'_
that more testing and research on the effects of the :adiatien
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emitted from VDT's is necessary for the physical and mental'
well-being of terminal operators due to the recent reports
on the hazards of VDT radiation.
Ms . Barss had spoken to her immediate supervisor ,
Mr . Battison. He said she could do clerical work as long as
her terminal was covered by other employees , who had already
agreed to do so . Her request was passed on to Mfr . Battison' s
superior, Mr . H. F. Ahrens, the Correspondence Superintendent.
Mr . Ahrens on April 6 wrote Ms . Barss as follows ;
With reference to your request for a temporary change of
assignment., I would like to advise you of our willingness
to cooperate within the parameters of our operational
requirements.
Based on the best information available, the government as
an employer has no knowledge that there is any health hazard
connected with C.R.T. display terminals., However, we do
appreciate your personal concerns and are prepared to concur
with your personal wishes with regards to reassignment.
In order to grant your request for an assignment away from
the terminal, administration requirements must be considered.
This will necessitate moving you to a position with lower
compensation than your present position] in accordance with
your request, your new assignment will be to the position of
Records Clerk, classified as Clerk 2 General, effective from
April 8, 1981 to July 3, 1981 at a salary of $233.94, the
maximum for the class. While we do not acknowledge any
r -health hazard connected with your recent assignment we are
prepared to make this operational adjustment based on your
personal request. --
Please confirm your intentions in writing at your earliest
convenience.
The discrepancy between the figure of $233 , 94 above
and the figure of $267. 34 in the statement of fact is apparently
due to a change in the rate as of May 1 , 1981 .
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Telephone calls were exchanged about tie same "_:me
and ( also on April 6 ) Mr . George Richards of the O . P . S . . .
wrote Mr . Ahrens as follows :
I am writing on behalf of Mrs. Helen Barss to advise that she
will accept your offer to transfer her to the position of Re:oras
Clerk, effective from April 8th to July 31st, 1981.
As stated in my telephone call to Mr. A.H. Glendenning, Director
of Personnel in your Ministry, Mrs. Barss' acceptance is made
without prejudice to her basic contention that she is entitled
to a temporary transfer away from her regular position which
involves the operation of a video display terminal as a matter of
right, pursuant to cl. 18.1 of the collective agreement. M-at clause
provides that:
"The employer shall continue to make reasonable
provisions for the health and safety of its
employees during the hours of their employment. . ."
Simply put, the union contends that it would be unreasonable for
the Ministry to refuse Mrs. Barss' request, given the fact that
it is made on the basis of a written recommendation of her physician,
Dr. Isenberg, dated April 2, 1981, a copy of which is attached.
The union further submits that cl. 18.1 can be triggered by an
employee's reasonable apprehension of damage to his or her health
and safety, and that it is unnecessary for us to prove conclusively
the existence of a hazard, especially where, as in this case, we
are dealing with relatively new technology about which there may
as yet be insufficient medical, research on which to .base definite
conclusions.
I would therefore ask that you reconsider the terms on which you
have offered to make the change in assignmant and failing which, I
would ask that you consider this letter as a grievance submitted cn
behalf of Mrs. Barss, alleging a violation of her rights under
cl. 18.1 and cl. 5.6 of the collective agreement. 'fie remedy
requested is maintenance of Mrs. Barss' regular rate of pay, as
required by cl. 5.6, rather than reduction to the rate of a Clerk 2
and as indicated in your memo of April 6th.
The result was as stated in the third paragraph of
Mr . Ahrens ' letter to Ms . Bar-ss . From April 8 to July 3 , 13310
she worked as a records clerk , classified Clerk 2 General , a-::
a salary of $233 . 94 per week, or $52 . 37 less than the salary
she had received as a Data Processing Technician .
The grieVor began maternity leave July 3 and her
first child was born July 30 . When she appeared as a witness
before this Board on September 29 she expected- to resume work
in November and emphasized that she was quite willing to serve
as a Data Processing Technician, there being no longer any risk
to her child .
In cross-examination, Ms . Barss said she was not
aware of scientific studies on the subject , but she did know
of other pregnant women in the service who had worked on VDT;
she mentioned one in 1979 , another in 1980 and a third in the
spring of 1981 .
The grievor was shown an extract from an O. P. S .E. U.
publication, which she thought had been shown to her physician.
However , there seemed some doubt whether she had in mind the
O. P. S . E. U. article or the report in the Toronto Sun . She said
she usually watched television for an hour or so at night and
about the same when she was home on maternity leave . She
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couldn ' t recall seeing an article on VDT in "Topical , " a
government publication. She had discussed the problem with
other employees who may have told her of what they read in
newspapers . Ms . Barss said her only concern was with the
welfare of her unborn child ; she did not worry about herself .
For the purpose of establishing that VDT are not
hazardous to the health of operators , the employer ' s counsel
called two expert witnesses .
Dr . Maxwell Fitch, M.D. , is Director of the Special
Studies and Services Branch at the Ministry of Labour and
earlier had been Director of the Occupational Health Protection
Branch . A graduate of McGill and the University of Toronto , he
holds a diploma in Industrial Health and is a FRCP in Public
Health . Among his studies was radiation of all kinds , and his
branch is the only one in the Ontario Government involved with
the problem . His staff in the area includes Dr . Harry Aitken,
Chief of the Radiation Protection Service (who has several
physicists assisting him ) and Dr . A-. M. Mue, a Ph . D. in physics
and a specialist in respect of non-ionizing radiation; Dr .
Ross Hirninh , a Ph . D. in physics specializing in X-ray . He
said these three are concerned with the effects of radiation .
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The only applicable legislation is the Radiation
Emitting Devices Act, a federal statute , which however is
concerned only with- X-radiation . Dr . Fitch explained t:iat
there are two kinds of radiation, ionizing (such as X-ray )
and non-ionizing . The safety guidelines are in a list pub-
lished under the Ontario Occupational Health and Safety Act
and are based on material previously issued by the American
Conference of Governmental Industrial Hygienists , of which Dr .
Fitch and other colleagues are members , Dr . Muc happens to be
a member of its sub-committee . Dr . Fitch believes that the
guidelines will become part of the Regulations under the
Occupational Health and Safety Act.
The prescribed limits are 0 . 5 milli-roentgens per
hour at a distance of 5 cm . from the device , i .e . about two
inches . These limits are specified in regulations under the
federal Act but they apply only to X-rays , which he said
include VDT and television receivers .
According to Dr . Fitch : "We have devices to measure
emissions . We can measure to about one-hundreth of t`.:e federal
limit , as does the Radiation Protection Bureau at Health and
Welfare Canada , with whom we are in close contact . " He said
his Branch has measured hundreds of video display terminals ,
and "we have never found any measureable X-radiation . "
Dr . Fitch then referred to an article in *_he Canadian
Medical Journal by the head of the Radiation Protection Bureau ,
Environmental Health Directorate , Health Protection Branch ,
Department of National Health and welfare , which appeared in
the issue dated September 15 , 19$1 --- several months after
Mrs . Barss became disturbed by the alarmist reports she had
read - in newspapers . The contribution of Dr . Ernest Letourneau
will be reproduced later in this decision .
Dr. Fitch said his Branch receives the results of
considerable research done under the auspices of. the U.S .
National Institute of Occupational Safety and Health , now part
of the Department of Health and Human Resources . He added
"the reports I' ve seen are essentially the same as ours . "
Dr . Fitch then discussed the matter of non-ionizing
radiation. This includes the whole range of electromagnetic
radiation such as the ultra-violet and sunshine . The same
equipment could not be used to measure its strength . It would
be measureable if greater than the non-ionizing radiation which
reaches everyone on earth from natural sources . He said that
"the readings we have are one-one thousandth of the guidelines .
In most cases , nothing is detectible . "
In the opinion of Dr . Fitch , there is no hazard in
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being exposed to VDT.
On being questioned about the shoe store X-ray
devices which were in use three decades ago , Dr . Fitch agreed
that such devices "were not perceived to be dangerous for some
years - quite a while . " He said he was not aware of any U . S .
studies or of studies made by the Quebec' Department of the
Environment suggesting there ware dangers in exposure to VDT.
He confirmed that use .of such devices has greatly increased .
He also made the observation that "science does not have all
the answers . "
Referring to an earlier controversy about the use
of VDT at the Toronto Star , Dr. Fitch said that all Star
terminals had been tested and there was no evidence of any
X-ray emissions or of other radiation . He agreed, however,
that the effects of ionizing radiation, if any, could be
cumulative.
The second expert witness was Dr . James Henry Aitken ,
Ph . D. , Chief of the Radiation Protection Service at the Ministry
of Labour . A nuclear physicist, he has tested "quite a number
of VDT" but not tested any four-phase units , such as those
operated by Ms . Barss . However , thev had been tested I_--v the
U . S . Health Protection Bureau . The main testina is done tc
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measure X-ray emissions under "normal operating conditions . "
The- device will measure low-level emission. One of the tech-
niques used in testing is to "sabotage the gadgetry " inside
the -box, thereby simulating a failure of the circuitry to a
level representing the maximum capability of power supply .
It is then measured again, because the effect of the sabotage
is to increase emission, perhaps doubling it . Dr . Aitken said
he had read the American reports on older models which had been
banned for failure to meet the U. S . standard, which is the same
as Canada' s . In this technology, he said "the early 70 ' s is
old . " The failures came to his attention in the last couple of
years and the results were circulated widely . The failures
occurred in the sabotage test , when X-ray emissions slightly
exceeded the prescribed standard.
Dr . Aitken said we are all exposed to ionizing
radiation from the ground, from buildings and from cosmic
radiation. In� Toronto for example people receive 100 radiation
units per year . In northern Ontario it might be between 150 and
200 . At Banff it could be 150 or higher-- due to increased expos-
ure to cosmic radiation. Flying in a -jet over the Atlantic
one would receive about 5 units but in a Concorde it could be
four times that level . He estimated an operator would receive
from a VDT about 5 units over a year . He had attempted to
measure non-ionizing radiation from VDT. it can be emitted
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from a VAT if the device is not well-grounded . According to
him the measurable radiation of broadcasts exceeds the VE"T
levels and can be created by many electronic gadgets or ever,
by combing human hair . VDT frequencies are much lower than
from a radio or pocket calculator .
Dr . Aitken identified Exhibit 7 , an article by Dr .
Muc of his branch in "Topical " (an Ontario Government publi-
cation ) in which appears the following statement : "It has
been calculated that the body burden of radiation carried by
one' s bed partner exposes you to more radiation than working
with a VDT all day. " Another statement by Dr . Muc was that
"you pick up more ionizing radiation from the CN Tower or ,a
microwave oven than a VDT. " Referring to the Radiation
Emitting Devices Act, Dr. Muc said that "certain concerns
addressed by the legislation have already evaporated with the
progress of a technology . "
Dr . Aitken- testified he had not received anv inauiry
from Mr . Ahrens or Mr . Battison as to the safety of VDT. He
also explained that the harmful effects of exposure to
radiation were known at an early date , but it was not until 1'??7
that the International Congress of Radiology recommended safetv
levels . Its standard had not been reduced since 1960 . He said
the detection limit is about one-tenth of the standard . in his
opinion the level of risk is in the order of one in a million .
He added that there is a controversy among scientists which has
been. distorted by newspaper reports . Answering a question,
he said that a chest X1-ray may amount to 35 units and a dental
X-ray even less .
In his argument on behalf of the grievor , Mr . Richards
said the facts here are not really in dispute, although there
is a difference between the opinions expressed by Dr. Isenberg
and Dr . Fitch. He was relying on Article 5 .6 in ' the collective
agreement , which raised the vital question: was the grievor
assigned to a different position "for reasons of health? " He
further argued that under Article 18 .1 , the employer had an
obligation to honour a request for transfer by an employee when
that request is supported by a physician' s certificate . He
submitted that there are precedents to support the proposition
that _when an employee has a reasonable belief in danger , con-
firmed by medical opinion, that is sufficient to establish an
obligation on the part of the employer. He cited such cases
as Martindale Sash ( O' Shea ) 1 L. A. C. ( 2&) 324 : Lake Ontario
Steel ( Weiler ) , 19 L. A.C. 103 , and American ':Rotors ( Krever )
17 L.A.C. 210 (noted but not reported . )
Mr . Richards further contended that the arievor :-sad
advanced a reasonable scheme which was acceptable to her fellow
workers , i .e . they were willing to cover her position temper-
arily . He contended also that the employer made no ef.'crt
whatever to dispel the grievor ' s fears . A meeting could nave
been arranged to discuss the problem ; all management did was
to assure her that in the employer ' s opinion there was no risk .
Referring to the expert evidence , Mfr . Richards pointed
out that both witnesses were government employees . He said
that expert opinions "at this late stage " are untimely and not
sufficient to meet the obligation recognized by Article 16 .1 .
In any event, the witnesses could give only opinion evidence ,
and it was clear that a definitive conclusion in respect of the
hazards of exposure to VDT radiation has yet to be established.
Mr . Richards also referred to a provincial statute ,
the Employee Health and Safety Act of 1976 , and in particular to
section 9 thereof . Under that legislation, there was a du-:v
imposed on the employer not to penalize an employee when the
employee has acted in compliance with other provisions of the
Act . He referred also to the Occupational Health and Safety
Act of 1978 in which Section 24 resembled Section 9 in the
earlier Act . Both made clear that it was unlawful for the
employer to penalize an employee in any way for declining to
perform duties which the employee has reasonable cause to believe
may be unsafe .
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Mr. Richards submitted that the onus is on the
employer to prove a product is in fact safe ; on the other
hand, the employee need not provide conclusive proof of the
hazard ; only a reasonable belief is required . This was "a
limited exception" to the general rule that an employee
receiving a questionable order should "obey now and grieve
later . " - He cited Cominco and United Steelworkers. -as, well as
Pherand and Inca Metals (which he said were unreported ) with
their discussion of the standard for "reasonable belief . " in
most cases , he asserted, an employee acts on the basis of his
own opinion ; in this case , the grievor had wisely acted on
medical advice .,
Counsel for the employer , Mr . Moran, based his
argument on three assertions . First , the grievor had obtained
a transfer at her own request "for personal reasons . " Secondly,
there was no safety or health hazard to her or to anyone .
Thirdly , she was not assigned "for health reasons " to a position
in a lower classification , as contemplated by Article 5 .6 in
the collective agreement .
Mr . Moran suggested that grievances of this nature
cause employers to become inflexible . In this case , yr .
Battison had responded sympathetically to the grievor , -a-'ked ,
to his supervisor and suggested she should obtain a .medical
opinion and submit her request in writing . She was then told
clearly by Mr . Ahrens the conditions of the transfer . However ,
there was no requirement under 5 . 6 that her request should be
granted . If refused, she could have declined to perform her
duties and would either be subject to discipline or proceedings
under the Occupational Health and Safety Act . if she had
refused to continue at the VDT and then grieved , an inspection
would have been done by Dr . Fitch ' s Branch .
Mr . Moran said it was now too late to refer to tae
Occupational Health and Safety Act . The relevance of that Act
had not been an issue until the hearing of the case . However ,
counsel denied that there had been any breach of the Act .
All that had to be considered here was the application, if any ,
of Articles 5 . 6 and 18 .1 .
In Mr . Moran' s submission , the employer could assign
the grievor "as we see fit , " unless she could show the assign-
ment to be contrary to some provision of the collective agree-
ment , and the onus would then be upon her to prove her case .
The power of assignment was statutory , appearing in what is
now Section 18 ( 1 ) of the Crown Employees Collective Bargaining
Act , formerly section 17 (1 ) . No problem about expesure to VDT
had been demonstrated at the time of the transfer ; the articles
in the Toronto Sun and the O . F . S .E. U . newspaper were not
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persuasive or authoritative ; on the other hand , the article
in "Topical , " the Government ' s publication , rude clear tsar
management had irifo:irma'tion based'-on scientific tests , that
there was no danger in exposure to VDT. In these circumstances ,
it was not reasonable to rely on the statement of a general
practitioner . Mr . Moran denied that there was any obligation
on the part of the Employer to act on the basis of a medical
certificate . He cited Firestone (weatherill ) 3 L .A .C. ( 2d ) 12 ,
to the effect that where the onus is on the employee it is for
that employee to find expert witnesses . Here the onus was on
Ms . Barss to show that her transfer was "for health reasons ; "
that onus had not been discharged by her testimony .
Mr . Moran said that whether there is anv hazard caused
by exposure to VDT radiation is a question of fact which must be
determined by the Board. If in fact there is no hazard, neither
Article 5 .6 nor 18 .1 have any application. He urged that the
Union be directed to publish the article from the Canadian Medical-
Journal , which was the most authoritative statement anvwhere in
evidence .
In reply , Mr . Richards said that the last suggestion
made by Mr . Moran should be directed by the Government to
the President of the O. P . S . E. U. rather than to this Bcard . :" ev
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were both in agreement , however , that Article 5 . 3 in t^e agree-
ment., intended for a -different purpose , had no 'bearing on t:.iS
case and they were asking the Board to ignore it . He said ,e
doctor-patient relationship is based on trust , and it was only
prudent of the grievor to take the advice of her physician ,
which in itself provided reasonable grounds for her belies .hat
she should not be exposed to VDT during pregnancy . Mr . Richa;3s
also pointed out that the article by Dr . Letou_neau had not
appeared in the Canadian Medical Journal until September, 1981 ,
some months after Dr . Isenberg gave his recommendation. As to
whether there was a ,health problem, he said it should be
remembered that fear can itself constitute a health problem ,
the more -so when that fear is founded on •medical ,advice .
Before stating our reasons for decision it may be well
to make clear what this Board is not deciding in this case . We
are not deciding whether exposure to VDT involves dangerous
radiation . Fortunately , we lack both the authority and the
ability to arbitrate issues which can' be determined only by
prolonged scientific inquiry . We accept, Mr . Moran° s submission
that what must be decided here is the correc-� interpretaticn
of Article 5 . 5 and 18 .1 in the applicable collective agreement .
However , in view of the serious effort which has been :jade tc
show that , according to current sci'enzific opinion , t1here *-s no
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danger in exposure to VDT radiation , we reproduce herewith
the article by Dr . Letourneau in the Canadian, Medical Journal
of September, 1981 , Exhibit 6 . Whatever the ultimate con-
clusions on the matter may be, it is an authoritative state-
ment of the present view, arrived at ' by investigators in
both the U.S .A. and Canada . It is at least more impressi7e
than the Toronto Sun headline which disturbed Ms . Barss :
"Pregnant Belles Can Refuse VDT Use . "
Are video display
terminals sale?
ERNE: J G. t.iiouR:,rtau, %tn
Monochrume (black-and-white) televisiun sets have The adverse publicity and unbupponed eat:
been used for more than 30 years and have caused led to notch unneccsssry concern, oar:ict[i:sriti anon
very little content to the population. Iltmever, in the womc[I, that �'DFS couid be detriiiwni;:l to the hu:[:th
late 1960N there was quite a furore abuut the x-ray of the uperatur, and to the case of a ,arre_rtant wum::u.
emissions from certain colour televisions. At that time her fetus.
everyone agreed that monochrome televisions could The radiation protection bureau of the health pro-
not emit x-rays because of their inherent physitat teetion branch. Department of National Hcalth snd
Characteristics. Welfare ha. been monitorine television sets and VDI's
However, in the past 3 ye.trs rnonuchrome tclevi- for th,' past 10 year, as hurt of its rcgulatorv' Coo-
Siuns, in tilt ��uisc of video display terininals (VDTs), pliante prltgrani under the R;ttli;iIIt+n Etttittilt�, Dcvlces
have become a cansc of concert. VDTs are relatively .act. Dluring that time. detaikJ r.[diatiun Of
snexpcnsivc, legs-power niomicttrc[ntc television sets over No different VDTs have been nt.tde f unpuh3ish.:j
that are honked up to keyboards and electronic data- data, 1981 ). The results of these ;urvevti. ancf IhObt
handlil[i! systunts. Their proliferation, especially in of other scientific grtrups -around the :vc)rid, call he
area., involving the media. has given rise to a rush ,uminariicd as follOwN.-
uf claim, of radiation el`Ncts. as if thetie systems were • S+,ft .r-ray+ art produced Him,!,: the o;,:-,utc
trtdowcd with sonic special nialtgnant properties not however, thuv are totally absorrcd bt the ;nul
pr4scttt in their cousins ill most homes. therefore du nut tnttrcc from the tube,
- -_____ . ____-._- - _- __._ . — -- __ _-. - ! The meaaurcJ level of ultray.,,,ict ru+lr.a:.t,r .b a
Rrt?rtnr rc4W'ta w: Dr. Ernest G. Utuurnesu, Director, thousand tinlcs lover than that Ntrnt[ttet€ in �lmtmut u�
R:I+llatlaJn prvteuhun hurcau. Knl. tilt, Fnriruninental heaitt►
J"Clrur.+IC. Fteal[h pr.Ncojon hranch, Devarinienl of occulmtio nal Or. for tt„+t ni i,.,cr
tl,:.il[It ..n.l «'clf;trc, Hwt1k Od RoAti. Curllc&r.ltion ouI+{+few,
�IC1C1:[• S)I l.iy�a, t)w KLA 1C-1 Zhcr< I,_ of Lotlr�e, rr IN4 ...�..ar.Ott, ++t�:,::'•,'�:
- 22 -
tlliC r,111uid imi cc ;wkihing oo the \crcen. 1-11c h,iLht- �I•.al it;1, •4� :'Ir ,rl:r_:7 ;11 :.�• .' •:a,n
ncv\ dCpCml% on the adjus,tnu•nl of the "green, but it hC:tltli plidilvill\ t..w.-t-d h% •1 ..k it,;! U :
is ,till tier% low — some 200 lime`; tower than the I.,mL: 11-1. i,f rtlmpki7sit\. 'uci7 .,� ;;:I;;; ::;c ; ::n
level 111 11.011 ouldoors on a cloudy clay. rn the haCk. 'iu111lrlcr\• 11ra(l. !r,','F ;r,n\ •,nr) .,r;ct
The aniounl of infrared r0dirltiun enliticd is hayc hce11 ;lithlVdit-d. Hit: rtic;vncr r, ;;I rt1: r7•rni -,f
nc',liLihle. icsllnlollials and doe, mil •.tr:rki:lc
p In \Hale models there is a lrtw level of ulnc�iru• VDr\ causes arty snort- prt,NvIlls :ham .:n% ri:llcr oc-
uhrawuund cinission. clipatiuu that lllv.cllycs •(,ntc•:(hai t�:lit,ns .%tirk rct;i;r
o The design of the ciccillaturs in VD rs 1u)d the ing a fixed pv,citiou ;Ind vi\uril cmik:ciiimlic1n. S�.7Tlr-
natnre of their operation precludes the emission of lulus from the tise of VDTS are iimv1 pvvihc :Ind are
rnir•rowavr radiation. found i21 Moen% 1.4`111k siitianons. 111forts to ;61c•,ime
O 'mc frequency.cif cntined viccirru,rrignrtir raffia- Ihe%c nttllsa(liatImi l,roil(•rns are useful and -Ihould
null is low less than itl %mz. 'Chis radiation ortCtu- 31SO cnaIHC Ihcrn to he cllrret:i.•d in site other Iitualions
:uec in the cicctrical circuits and is conimonly found in +hich :hc% ha« ari,cn.
hear c•>:rriin household cicctrical appliances: ncc fic€ds hlle bcsl advice a pliv\iciall can ,1%. a Irstic:a ;:N,ul
are vcr,v I(1w at the operator's position. VDTs is that they rtro no hors d an,crous thmi the
Many of the reports published in the Bast year Con- iii(m lchnime islc'.i\ir+n acts found in honicc ;Ind ;hat
tcrning the ailc_,ed health hazards of VDTs Ilcrpetuatc thcv carne no radiation haiard.
the myth that ;onlc low-level x-ray radiation is emitted
from VI)I's." In fact, the most sophisticaLcd ineasuring Itefercnces
techniques used at the radiation protection bureau.
which involve low-background chambers. cotifirm that I. "" Firrr,lrrtrrrn eel F,rrlrar„rn Frrrt,.rcln jerrm rider) ;)hriai Ter,mrneis.
MIS ruhl FDA RI-Alt?, US neat of health .end Nieman Scrricm
the basic laws of physics are still operating and that Truhiie ilcairh sc-1ce. F--d and r)mIt Adminrsiratlnn, Rurrw of
Radiolopc;d t{c,tl;h. Rn,:.,ilc• Md. Feb 1991
There 1S 7.Cf0 x-raV Cn11FSE(111 from these terminals. (Zero P"M111\W ]T: Re-rr of the l.rrrrar,,Pr ,•n llralrh Ha,-ards n,
in this case IC dCfltled as less than one thousandth of -- :•teen, f)"rla1 Trrnrrrrnls, C.,nue7;an Ccnite 4•t Q.cur.,unnai lieallh
the natural radiation back-urnnnd to which even'one is Ind Safety, liantdwn, Ont, Oct 19PO
-
I. 1fe"Pir rllr,r, rri t•,drrr hr,riat Tr•.nr.,ul, TAr ,\'un-kuri,,rrrr.n rrve•-
cxpclsed,1 Irmt, hcallh :,dl,lr:u, nn,t. ncN of PuNiC 11:..;th. T„rnnio. 51as :991
Similarly. it has becil claimed that In-w-level tionlon- s. I nA •cc, nn radf:rt;,,n vii VDT ,ccccns. r !CAI: :!Z: t12:1-
izing radiation has lone-term effects.' Once again, the 1121
t, r"I'lernr! N,uldr Nu:Jldl ,rl v,a-r, nf,riar -r.rnrr•rgr. ,Oak:and Tr,-
effcetS of ntlnionizing Mdi.16011 ;ire haled on known Imne1, to 41M.PtA. US nern of Stealth and Ttuman SCr%tces,
'uNic 11t7ath Sern,e. i,mcrs for Dkease Control. Nwirnal Ina,ture bttphySlCal CnlCCptS of abzOCp[lUn Of radiation at Irlr
ocoorar[r,nai s:dr1? .r,d Health. Cincrnn7111. Ohio. 1991
various ,kavelengths. Claims for effects of nlicrox%aves h, P.u...... ! fl.•alrh li.r-.rrd, ..7 I'i,lrn rii,r,lu, .T.-imais filar Shrr!a
;ere illil,_ical as no tmcr(awaves are emitted, and those ,I ('alil....nu,, T.+t 'rr•ruf>•KS}, CS Dcr" of Henlih and !Wn:rn
Scr•'rCC,. Puhh, F1c:rl,h Gcr•'tce. Centers t„r r)i.ca%e C-•mere. N'., wn.1l
for effects of electromagnetic radiation would be hard In.utute for 0.,uralj,.na1 S•,icr1 .Ind 11c.tlih. Cinctmrlmi. f+hto. IoR1
to Substantiate scientifically in the presetice of all- 1. P..rr rrra! IJ.ulrh Nu:red, w T';,l.v. 11„riat 7 er-mal, FAan i•ten,n,r
.\',•r.r,errr -teener. �hr.,nlrlr and F.tamrn,rl. TA
pen•asiv� electrical noise. next ni Itenilh anti 111MM13 SCr�Xe%. rsrhlic health Scr,icc. C,nter'
- In summary, VDTs smelt no ionizing radiation fx- for DiscaNc ConU1N. N.NU,nal ImMute rat rltcurntionai S.tf C1, and
raysl. There is no evidence that at the detected levels ncalth. Crra.nn.lu. Ohio, 7981
the nonignizing radiation emitted from VDTs can pro- Thesc references arc n•pre%cntali%r of the abundant
Juice biologic effects or pose any hazard to health. literature an lideu rli,plav lerlitinas. Farther references
Thus, in the absence of a cause it is hard to establish are mailahfe frngt the author.
a link between VDTs and cataracts or birth defects.
By Coincidence or otherwise , the editors of the journal_
reproduced ---- immediately following Dr . Letourneau' s article ---
two quotations from authors of an earlier day . Of these , the
latter (by William Heberden ? is as follows :
2 J _
No aphorism of Hippocrates holds truer to this day, than that
in which he laments the length of time necessary to establish
medical truths, and the danger, unless the utmost caution be
used, of our being misled even by experience.
The Board was impressed by Dr . ritch ' s candid state-
ment in his testimony that "science does not have all the answers . "
Although the result of this- case does not turn on the validity
or invalidity of the prevailing scientific opinion about VDT,
the matter calls for further comment because such issues arise
with increasing frequency in the area of Occupational Health
and Saf ety .
In our view, the .public in general and workers in
particular can have complete confidence in the scientific
approach . That approach has made possible in the last century
more progress and more improvement in the lot of mankind than
occurred in several previous millenia.
[nevertheless, any alert member of the non-scientific
community is entitled to remain sceptical in respect of some
conclusions proclaimed as eternal verities by eminent scientists .
There are reasons for scepticism , and scientists should try
to understand what those reasons are and not place all the blame
on exaggerations and distortions by journalists .
I
24 -
The principal reason for scepticism is ' the well-kncwn
"- fact that scientists can and do change their minds . Toc of-.en
what has been thought acceptable is suddenly found to be unac-
ceptable . The public is well aware of changing opinions about
the harmfulness --- or harmlessness --- of urea formaldehyde ,
DDT, 2-4-D, contraceptive pills , saccharin and a host of other
products once hailed as a boon to mankind --- not to mention
thalidomide . These changes do not affect the validity of the
scientific approach ; they merely demonstrate that any scientist ,
being human, can make mistakes and that if he works in a highly
specialized field ( as most scientists do ) he may overlook some-
thing of importance which may (or may not ) be noticed by other
scientists much later .
A second reason for public scepticism is the snail-
like pace at which research scientists overtake the by-products
of_ applied science . The public has noticed that it took many
years before much interest was shown in the effects on the
ecology and the food chain of acid rain, mercury , PCB' s , asbestos
and other contaminants in the air , soil or water . Mercury
pollution was almost completely ignored by Canadian environmental
authorities until a Swedish scientist happened to visit this
country .
A third reason is a phenomenon with which :nano lawyers
i
I
25 -
and judges are familiar . When an issue of scientific import
gets into the courts , each side almost invariably seems able
( if it has the money ) to find a distinguished expert witness
to give opinion evidence diametrically opposed to the views
of an equally distinguished expert retained by the other side .
These gladiatorial contests ,seldom reflect credit or credibility
on the scientific community, and the public has noticed it .
On a more sophisticated level , there is a certain
weakness in scientific methodology , as distinct from the
scientific approach. it is the tendency to 2uantiLZ phenomena
rather than search for qualitative results . It is of course
much easier to measure something than to discover all its
effects but there are risks . in . relying exclusively on measure-
ment , which is often made only for the purpose of comparison
with an arbitrary standard. Thus science has enabled the
policeman to quantify the level of alcohol in the blood , but
of course the quantification does not disclose how much damage
has been done by alcohol to ,organs within the body ; it is not
the policeman ' s job to find out . Similarly , by taking samples
of hair and blood , a trained technician can measure accurately
the level of mercury in a human body , but he cannot judge the
effect, if any , mercury poisoning has had on the brain or other
organs .
. r
- 26 -
Unfortunately , the emphasis in Dr . Lezourneau ' s
article , Exhibit 6 , is on measurement , i .e . the quantification
of radiation: He is probably correct in stating that measure-
able VDT radiation is so low as to be negligible , or even zero
--- being "less than one-thousandth of the natural radiation
background =to which everyone is exposed . "
Nevertheless , the history of "regulation" by the
"radiation protection bureau of the health protection branch,
Department of National Health and Welfare " is rather strange ,
to say the least . The disturbing fact is ( as Dr . Letourneau
failed to mention ) that until March 2, 1979 , there was no
regulation at all applying to VDT in Canada. Further , the fact
that a regulation was found necessary at that very late date
suggests that there could be something more than "zero " radiation
emitted from VDT, perhaps by reason of a malfunction or a
defective product . Or perhaps because it became known that certain
models had to be withdrawn from the market in the U.S . A. after
failing their tests .
The Radiation Emitting Devices Act 1969-70 , C. 37 ,
R. S . C. 1970 lst Supplement , C. 34 , enacted by Parliament in
1970 (presumably on the advice of the federal Government ' s
scientific staff ) was not proclaimed in force until March 1 , 1:72 .
It defined "radiation emitting device " as "anv device that is
t
- 27
capable of producing and emitting radiation . " Referring co
importation, sale or lease, Sections 5 , 6 and 8 use the term
"any radiation emitting device of a class for which standards
have been prescribed. " By Section 11 the Governor in Council.
was authorized to make regulations prescribing the "classes "
of radiation emitting devices for the purposes of =he Act and
also prescribing "standards regulating the design, construction,
and functioning of any prescribed class of radiation emitting
device and their components for the purpose of protecting ,per-
sons against personal injury, impairment of health or death
from radiation. " The Act of course did not mention any specific
device , that was left to the Regulations , of which no less
than eight have been adopted and gazetted by July, 1981 .
The original regulations appear in Consolidated
Regulations of 1978 , volume 14 ,c. 1370 . Section 3 provides that
the "classes " contemplated by the Act are those set out in
Schedule I (now Schedule A ) . The standards applicable thereto
are specified in Schedule II (now Schedule B ) .
There were 10 classes defined in Schedule I, in-
cluding TV receivers , dental X-ray equipment , microwave ovens ,
baggage inspection devices , photofluoroaraphic X-ray equipment
and certain "lasers " --- but no mention of VDT.
28 -
Throughout a series of amendments over several years
the regulations ignored VDT until March 2 , 1979 (more -han a
decade after VDT arrived in Canada ) when the definition of
Class 1 . (TV receivers ) was amended to include VDT. It appears
that scientific research and regulation proceeded at the usual
snail ' s pace referred to earlier in this decision, while the
technology and its uses continued to advance by leaps and bounds .
The definition of Class 1 , in Schedule I (now Sechudule
A) as amended March 2 , 1979 , now reads as follows :
Television receivers including video monitors and video
display systems, being electronic appliances designed to display
a picture or alphanumeric information, or both, after receiving
signals through electromagnetic waves, cable or other means of
transmission and including the cabinet or case of such appliances.
The present standard for TV receivers (which include
VDT since March 2 , 1979 ) is specified by paragraph 3 in Part I
of Schedule II (now Schedule B) as follows :
3. Every television receiver shall function in such a way that
(a) when the receiver '
(i) is fully assembled,
(ii) is used with any supply voltage up to the maximum
test voltage,
(iii) is used with any settings of the user controls
and service controls and
(iv) displays a synchronous raster covering at least
60 per cent of the viewable screen area,
the emission of ionizing radiation therefrom is such that the
exposure rate of X-rays, uben averaged over a period of 5 minutes
- 29 -
to an object having a 10 square centimentre cross sect-ion
and centred at 5 centimetres from any accessible ex-�:ernal
surface of the television receiver does not exceed 0.5
milliroentgen per hour. . . . .
The above is subject to an exception : if the TAI or
VDT is without a "case , " the limit is "not over 2 . 5 milliroenrgen"
per hour .
The standard set out above appears to be the standard
referred to by Dr . Fitch., who expects it to be embodied in
provincial regulations under The Occupational Health and Safety
Act , R.S:O. 1980 , C. 321 , which replaced an earlier statute , The
Employees Health and Safety Act , S. O. 1976 , 2nd Sess . C. 79 , as
might be expected, . the Canadian (and Ontario ) standard is derived
from the standard previously adopted in the U. S . A.
The present Ontario Act provides in Part V, Section
23 ( 3 ) that :
A worker may refuse to work or do particular work where he has
reason to believe that,
(a) any equipment, machine, device or thing he is to use
or operate is likely to endanger himself or another
worker.
it is also provided in Parr VI, Section 24 ( 11,
as follows :
.. 3 0 _
No employer or person acting on behalf of an employee shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend
a worker;
(c) impose any penalty .upon a worker; or
(d) intimidate or coerce a worker, because the worker has acted
in compliance with this Act or the regulations or an crde_r
made thereunder or has sought the enforcement of the Act or
the regulations.
As Mr . Richards - pointed out , these provisions of she
present Act are similar to those in the 1976 Act and are expressly
stated to be binding on the Crown. "
The intent of the legislation was anticipated in the
exhaustive review of arbitral jurisprudence made by Professor
Palmer in Steel Co . of Canada Ltd. and U. S . W. Local 1005 (1975 )
8 L. A. C. (2d ) 375 . After citing 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 nor
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
activity , such advice can be used as a basis for
drawing the conclusion that a person was acting
reasonably in following it . See Re U. A . W . Local
63_6 and F.M. C. of Canada Ltd _Link Belt Soeeder
Division (1971 ), 23rL. A. C. 234 ( O' Shea ) .
Professor Palmer then offered the followi:ic
qualifications :
In the same vein, where senior officials cf .the employer,
knowledgeable in the area, have given assurances cf 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 :he
work so pronounced safe. See Gen'1 Truck Drivers' Union,
Local 879 and_QuigleZ Construction Ltd. (1962) 13 L.A.C. 45
(Reville)
The final requirement in this area is that the grievor
must, at the time of the refusal, communicate his reasons
for 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 . Barss . Mr . Ahrens did not testify, but the
employer ' s expert witnesses said they had received no inquiry
from Mr . Ahrens or his off ice . In this case of course the
grievor asked that she be allowed to perform other duties ,
and the employer complied, so that the question of "refusal "
does not arise . Secondly , she certainly made her reasons clear,
orally and in a detailed letter supported by Dr . Isenberg ' s
recommendation.
The facts here are very different from those in the
case decided by Professor Palmer, but we think the tests he used
are entirely appropriate .
First , was the type of apprehended danger , whether
real or imaginary , of sufficient seriousness to justify the
grievor ' s request for a change of duties ?
32
As to this test , our view is that t.�e 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 have "reasonable grounds " for
believing that exposure to VDT radiation would. put her child
at risk?
Our answer to this question must be in the affirmative .
Every pregnant woman (unless she is a fool ) consults her phys-
ician and is entitled to rely on his advice, whether he be proved
right or 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 con-
sistent with the provisions of Article' 18 .1 in the collective
agreement . In any event , it would be absurd to require an
individual employee to mobilize all the scientific expertise
available to management .
Third , as already indicated , the grievor cave
management a detailed explanation of her reasons . Her behaviour
as well as her letter cannot be faulted . We are not overlookirc
the fact she had the agreement of co-workers to cover her VDT
station for the period of four hours each day when she usually
D
33
worked there . ' This arrangement would have co __n_,e^ c-nly _mac
months (until she took maternity leave ) but management decided
she should be placed in a lower classification .
The final and crucial question to be determined is
whether, in these circumstances , Ms . Barss was "for reasons of
health . . . . . assigned to a position in a classification having
a lower maximum salary , " within the meaning of Article 5 . 6 in
the collective agreement .
It is perfectly clear that the grievor was in fact
assigned temporarily to a position having a lower classification
where she was paid at a lower rate , and not according to the
protective clause in Article 5 . 6 . Did this occur "for reasons
of health? " The Employers position is that there were no
reasons of health but that a change was granted at the grievor' s
request .
The fact is that the grievor did not request a demotion ;
she requested a different arrangement . Fier sole reason for making
the request was the belief (we think on reasonable grounds ) -::::at
the change should be made for the protection of her unborn chit.: .
It would be a quibble of the meanest rind , and an
unrealistic one , to pretend that the health of the foetus is
_r
� R
34
unrelated to that of the mother , and we do not believe that could
possibly be the position of the Employer . At least during
pregnancy the health of one is the health of the other.
Argument on behalf of the Employer proceeded almost
entirely on the basis that the grievor"' s fears were unfounded .
That approach could have strange results in a different case .
It would mean, for example, that if an employeee were assigned
under 5 .6 as the result of a mistaken medical diagnosis , the -
employer could subsequently decide that once a correct diagnosis
showed there were in fact no valid "reasons of health" for the
assignment, the employee must lose (retroactively ) the protection
provided by 5 .6 . That would be a highly- inequitable result , not
one contemplated by the parties in 18 . 1 or elsewhere .
Since the hearing of this case, Mr . Richards has
provided us with citations for the Galt Metal Industries case,
decided by the Supreme Court of Canada and reported in 46 D. L. R.
( 3d) 150 aub . nom . McLeod v. Egan . That case , however , turned
on a very different issue arising under the Employees' Health
and Safety Act of 1976 .
Mr . Moran has also cited St . Jean de 3rebeuf Hospital
and C. U. P. E. Local 1101 16 L. A. C. ( 2d ) 199 ,- as authority for
"the principle that an employer is entitled to refuse a doctor ' s
,t
s
35 -
note and require additional medical evidence . " Undcubtedl•,r
there are cases where a medical certificate can be :roceriv
rejected as ambiguous , irrelevant , frivolous or incredihwe ,
but we are satisfied that this is not such a case .
As previously' stated , this Board is not deciding
whether work on VDT is safe or unsafe . For reasons explained
above, we hold that the grievor was assigned to a lower class-
ification "for reasons of health " and is entitled to be com-
pensated in accordance with the provisions of Article 5 . 6 in
the collective agreement . If there be any dispute about the
compensation payable , we retain jurisdiction and may be spoken
to .
DATED at Toronto this 21st day of January, 1982 .0, -
e E. . Jo1J B `7ice Chairman
1
r� mcmaixas Member
"t
H. J. Laing M^. Meurer
EBJ , jce
NOTE: SECOND PRINTING - March 1982
(includes minor typographical
corrections pages~ 11 , 16 and 4 )