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HomeMy WebLinkAbout1987-1102.Bain et al.90-02-28Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Bain, Kennedy, Klonowski) - and - The Crown in Right of Ontario (Ministry of Correctional Services) ,Before: For the Grievor: For the Employer: Hearings: Grievor Employer E. Ratushny Vice-Chairperson I. Freedman Member W. Lobraico Member P. Lukasiewics Counsel Gowling, Strathy & Henderson Barristers & Solicitors J. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services March 18, 1988 'November 3, 4, 30, 1988 ; ir ., - DECISION The Grievors are correctional officers at the Maplehurst Complex which is a "medium security" institution. They allege that the manner in which their work shifts were scheduled had a detrimental effect upon their health and, therefore, violated Article 18.1 of the Collective Agreement. The evidence called in support of their position consists of their own testimony that their increased absenteeism was because of illnesses brought about by their shift schedule. In addition, an expert witness was called to support the view that this schedule had features which were detrimental to the health of employees. The Maplehurst Complex consists of a number of "units" which serve different roles. Throughout 1986, the Grievors were employed in Unit #2. Although other shift schedules were referred to in evidence, the expert testimony was limited to the shift schedule for this unit, which is reproduced on the following page. Each of the sixteen figures in the far left column represents a separate employee. The letters A, B or C represent the shift which each employee will work on each day of the week. The shifts are: A - 6:45 to 13:15 (Day) B - 15:00 to 23:30 (Afternoon) C - 23:00 to 7:00 (Night) The letters BDO indicate the employee's regular days off each week. After each week, each employee rotates to the next line over a sixteen week cycle. . . , - 2 - SHIFT SCHEDULE MON TURS WED FBI SAT SUN 1 A A A RDO RDO A A 2 A A A A A RDO Him 3 B B B B B RDCI RDO 4 RDO Rrxl C C C C C 5 C C RDO RDO B B B 6 B B B Em0 RDO C C 7 C C C C C xx3 RDO 8 B B B RDO RDO B B 9 RDO RDO A A A A A D A A A RDO m c ‘c 1 C C C C C RDO RDO 2 B B B B B Rm RDO 3 RDO RDO A A A A A 4 A RDO F?Do B B B B 5 RDO mo B B B B B 6 B B Rm RDO A A A ,i , I - 3- This schedule meets the requirements of the Collective Agreement that no employee be required to work more than forty hours in any week and that each employee receive 48 continuous hours off each week. The specifications for the positions in question expressly require the "Ability to work rotating shifts in an institutional environment". The expert witness called on behalf of the Grievors was Jonathan Shearer who is a sessional lecturer and also holds a research position at Carleton University in Ottawa. His expertise was not challenged by the Employer. Mr. Shearer testified that the manner in which work shifts are scheduled can influence an employee's sleep cycles. He was critical of the schedule in question, essentially for two reasons: (1) The progression from week to week often involves "phase advance" rather than "phase delay". This means that a number of the weeks move in the direction from Night to Afternoon to Day rather than in the opposite direction. Mr. Shearer compared this to the "jet lag" effect of flying from West to East across time zones as opposed to the easier transition of flying from East to West. (2) The schedule includes stretches of seven consecutive night shifts. According to Mr. Shearer, some studies indicate that more than five continuous night shifts will result in adverse job performance through reduced strength and reaction time. He also suggested the desirability of maximising days off following night shifts and the undesirability of separating the same shifts by days off, as in the eighth week, but did not elaborate. 7 , 1 - 4 - Mr. Shearer was fair and balanced in the presentation of his evidence. He pointed out that even the best shift schedule based on all known factors will still result in detrimental changes to the sleep pattern of employees. Even in these circumstances, day sleep tends to be shorter than night sleep so that all night shifts will have a detrimental effect upon sleep. The literature indicates that shift work, generally, may affect the health of employees since disrupted sleep patterns may lead to gastro-intestinal and respiratory problems. In his view, "phase advance" scheduling and the presence of more than five consecutive night shifts will tend to increase these problems. However, he gave no indication as to how significant these factors might be. Are they of major or marginal influence? For example, he pointed out that strength and reaction time generally decrease as the day progresses, quite apart from any other factors. He was also forthright in pointing out that most, but not all, experts in his field would share his criticisms of the schedule in question. Mr. Shearer also testified that many other factors were influential in determining how sleep patterns might be affected by shift work. Some individuals simply tend to be more comfortable with being awake at night. Virtually all experts agree that people will adapt better to a shift schedule if it suits their personal preference, and the preference of other family members, for whatever reasons. Alcohol consumption, smoking and improper diet definitely will have an adverse impact. Aerobic conditioning is a factor which can enhance adaptability to shift work. In terms of alternative solutions, Mr. Shearer was also candid in pointing out that different schools of thought exist. i ,, -5- Some are of the view that it is best to keep workers on the same shift as long as possible so that their bodies will have time to adapt and maintain a new rhythm. Others disagree on the basis that even when a worker is on a night shift for a long period of time, there is a tendency to revert to normal days on "days off". Mr. Shearer's personal preference is for a "rapid rotation" with no more than three consecutive night shifts. He would also prefer twelve hour shifts since night shifts do not tend to show further detrimental consequences over twelve hour shifts until the fourth consecutive day. He concluded that, while he was reflecting opinion rather than fact, he would expect to see less problematic stress with a rapidly rotating (i.e. three units of twelve hours) phase delay schedule. Each of the three Grievors testified that he began to experience adverse physical reaction during 1986 and 1987 resulting in illness and absence from work. All related the origins of these illnesses to the shift schedule. Mr. Kennedy testified that there were certain periods during the schedule when his body did not have time to recover. He would have trouble sleeping, would wake up two or three times rather than sleeping continuously, and would not feel well rested when rising. As a result, he would feel general fatigue, depression and flu-like symptoms. He missed work increasingly through illness which he attributed to the shift schedule. When seeing his doctor about his frequent illnesses, Mr. Kennedy suggested that they were related to his shift schedule but the doctor would only concede that this "might be a possibility". No medical evidence was presented as to the nature or cause of the illness. Mr. Kennedy's attendance profile indicated a dramatic increase in absenteeism from five and one-quarter days in 1985 to - 6- twenty-three days in 1986. He testified that twelve of these days were taken by surgery for the removal of a fistula. He attempted to relate this problem to the shift schedule by suggesting that his general tiredness could have caused stress which could have led to the growth of the fistula in his anal canal. On cross-examination, he was taken through the remaining eleven days of absence in 1986. One of these was related to the fistula problem. On three days he was absent because of flu which he attributed to the work schedule. However, a letter to him from his supervisor (Exhibit 19), which reviews his 1986 attendance, indicates that one of these absences was related to the fistula problem. On three other days, he could not recall the nature of the illnesses but knew that they were related to the shift schedule due to tiredness. One day was missed because of a pulled hamstring muscle which, again, he attributed to tiredness as a result of the shift schedule. Another day was missed because of soreness to his knee as a result of surgery a day or two earlier. At first Mr. Kennedy suggested the possibility that this problem was related to the shift schedule but later conceded that it was a deterioration of the patella, possibly from a hockey injury. The other two days were missed as a result of an ear infection which he stated was not related to the shift schedule. (Exhibit 19 indicates that one of these absences was related to the fistula). In 1987, Mr. Kennedy was absent for thirteen days. He could not recall the reason for missing work on seven of those days. Two were missed because of surgery. Four of the days absent involved the flu or a cold which he related to the shift schedule. On cross-examination, Mr. Kennedy conceded that he had worked a number of days of voluntary overtime in both 1986 and 1987. He also conceded that he had not raised with the local ’ I - I - health and safety committee, his perception of the adverse effect of the shift schedule upon his health. Mr. Bain testified as to similar sleep problems and illnesses which he related to the shift schedule. Although he received regular check-ups, his doctor was unable to find "anything wrong". Mr. Bain expressed personal bitterness at having to work under the shift schedule in question when he felt that a better alternative could have been established. He missed six days between Febr.uary 2nd and July 6th of 1986 and two days in January of 1987, all of which were described as flu, cold or upset stomach, related to the shift schedule. In February of 1987, he transferred to other duties and another shift schedule. Mr. Bain also had worked a number of days of voluntary overtime in 1986. He had not raised his health problems with the local health and safety committee. Mr. Klonowski's testimony did not differ significantly from that of his colleagues although it was presented in much less detail. He related his absences to illnesses which he felt were caused by the shift schedule. He did not raise his health concerns with the local health and safety committee. Article 18.1 of the Collective Agreement provides that: 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. While we have read and analyzed the number of authorities cited to us, we need only make reference to Alaksa, Polfer and Brown and the Ministry of the Solicitor General (G.S.B. 1130, 1136 and 1137/84). There the Grievors argued that Article 18.1 had been .~ 1 i . - 8 - violated through a rotating schedule in which employees could be required to work ten consecutive days. The majority of the panel (Vice-Chairman Brent) interpreted Article 18.1 to be applicable as follows: We agree with the proposition that in order to successfully show that the working conditions are the cause of the employees' health problem the Union must establish a causal connection on balance of probabilities. In the case before us we have no medical evidence of any sort to support the opinions of the grievors attributing their symptoms to the ten consecutive days of work. In each case, while we do not doubt that the grievors suffered the problems which they described and while we are not without sympathy, we are in no position to accept their evidence that those problems are definitely attributable only to the ten day schedule. (At p.10. Emphasis added). The majority recognized "as a matter of common sense" that working ten days in succession on as many as three different shifts in that period will cause fatigue and disruption which can lead to an increase in stress. However, they observed that Article 18.1 does not require the Employer to eliminate from the workplace "every possible risk to every employee". If we were to apply the test of requiring the Grievors to establish that their health problems were "definitely" attributable "only" to the shift schedule, we would be imposing an impossibly high burden upon the Grievors which is not supported by the wording of Article 18.1. We are of. the view that the Board in Alaksa used the words "definitely" and "only" in relation to the evidence and arguments presented in that case. However, the operative words for the interpretation of Article 18.1 are to be found in the earlier part of the passage cited above i.e. "the Union must establish a causal connection on balance of probabilities". i I . . - 9 - A "causal connection" may be established by proof that the schedule is one factor as opposed to the "only" factor causing health problems. Moreover, proof on a balance of probabilities does not require that the proof be definitive. It merely requires that the causal relationship be "more likely than not". However, even if the Grievor meets this test, that does not end the matter since Article 18.1 does not speak in terms of "causal connection" or "balance of probabilities". Rather, it speaks of the Employer making "reasonable" provisions for health and safety and of reasonable co-operation between the Employer and the Union for the promotion of health and safety. (See, generally, the dissenting reasons of Mr. Robbins in the Alaksa case). The end result, therefore, is that where there is a factor or where there are factors which generate the anticipation of risk to the health and safety of employees, the employer must act reasonably, in all of the circumstances, to reduce such risk. That clearly does not mean that all risk must be eliminated. In the grievances before us, the evidence clearly established that all shift work almost inevitably has an adverse effect on sleep patterns and that health problems may occur as a result. Obviously, this does not mean that shift work must be abolished. On the other hand, where there is a clearly identifiable factor which, on balance, increases the risk to health by more than a marginal degree, the Employer should be required to take steps to eliminate or neutralize that factor provided that it is reasonable to do so. In the grievance before us, the causal connection between the health problems of the Grievors and the shift schedule for Unit Two is extremely tenuous. There is no doubt that the Grievors, themselves, felt that there was a causal relationship. However, I there is no factual basis for such a . - 10 - conclusion. Indeed, the credibility of some of their testimony was open to question such as the assertion of a causal relationship between the schedule and a pulled hamstring muscle or the development of a fistula which ultimately required surgery. There was absolutely no medical evidence to support such a relationship which is speculative at best. Indeed, there is an almost irresistible influence that the bitterness of the Grievors to the schedule in question and its perceived effect upon their health was largely driven by their preference for twelve hour shifts. Their credibility on this matter is further eroded by the voluntary overtime which they assumed and by the failure of all three of them to raise any health concerns with the local health and safety committee. On the other hand, the testimony of Mr. Shearer was uncontradicted in asserting that "phase delay" scheduling and the reduction of consecutive night shifts beyond five were desirable in reducing sleep problems and potential health problems. His evidence did not establish whether these were marginal or significant considerations. However, they would appear to be good scheduling practices, at least in isolation. Let us assume that these factors were significant. Did the Employer act unreasonably, and therefore in contravention of Article 18.1 by failing to incorporate them into its scheduling practices? We are of the view that the Employer had acted reasonably in all of the circumstances in relation to the schedule in question. The evidence indicates that within a day or two of Mr. DuCheneau becoming Superintendant at the Maplehurst Complex on May 5, 1986, he met with Union representatives to discuss current issues and communication between him and them. One of the issues brought to his attention was some dissatisfaction with the Unit i. -1. * 1 - 11 - Two schedule. He immediately invited them to propose a more acceptable schedule, if they could, and assured them that such a proposal would be considered. On June 18, the President of Local 234, Mr. Mahnke requested an Employee Relations Committee Meeting and listed ten "concerns" of the members for discussion. Scheduling was not included. Nevertheless, Mr. DuCheneau responded by agreeing to meet on July 8, and by adding to the agenda, concerns regarding the Unit Two schedule and clarification in relation to proposals for a compressed work week (i.e. twelve hour shifts). At the July 8 meeting, he expressed a willingness to negotiate in relation to a compressed work week as soon as Ministry restrictions were removed. (They ultimately were). He also welcomed alternatives to the Unit Two schedule provided institutional needs could be met. Alternative proposals were never submitted. The dilemma faced by the Employer in attempting to respond to demands for a compressed work week is reflected in the following passage from the Minutes of the Employee Relations Committee Meeting of May 5, 1987: Mr. McMullan [Vice-President of Local 2341 suggested a local committee be established to examine the feasibility of a compressed work week schedule at Maplehurst because with the issue being a mixed bag and some staff wanting 12 hour shifts, others wanting 10 hour shifts, and still others wanting to remain on the current eight-hour shift schedules, there is a need to know what staff really want. By that time, these grievances already had been initiated. The evidence of Mr. DuCheneau reflected the complexity of attempting to develop a schedule which would meet the requirements of the Collective Agreement and yet attempt to ,. . _ . . . - 12 - accommodate employee preferences to the extent possible. There was no suggestion that the Employer was not sensitive to employee wishes. Mr. DuCheneau testified that employee wishes might well conflict with what the experts might consider to be preferable scheduling practices. For example, employees normally prefer to have week-ends off and may be prepared to work long stretches of consecutive days in order to obtain long week-ends. While night shifts are generally considered to be undesirable, seven day stretches may be preferable because they reduce the number of occasions an employee is on night shifts. Since the employee's preference is a generally accepted positive factor in adapting to shift schedules, this preference might well outweigh the benefits of reducing the number of consecutive night shifts or of phase delay scheduling. It was argued, on behalf of the Grievors that the schedule could have been improved simply by adding more employees. In fact, two more employees were added on February 2nd, and the rotation was expanded to eighteen weeks from sixteen. In sum, it has not been established on a balance of probabilities that the schedule in question increased the risk to health by a significant degree. Moreover, there was no clear employee preference to which the Employer could respond. In all of these circumstances, it is impossible to conclude that the Employer acted unreasonably in failing to adopt a schedule which would eliminate the criticisms of Mr. Shearer. It would be inappropriate for this Board to attempt to impose an appropriate schedule in response to these three grievances. That is a matter which must be negotiated by the Union and the Employer. Accordingly, these three grievances are dismissed. DATED at Ottawa this 28th day of Februar~,~.1g90.