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HomeMy WebLinkAbout2002-0161.Union Grievance.05-05-19 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-0161 UNION# 2002-0530-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION John BrewIn Ryder Wnght Blair & Holmes LLP Bamsters and SOlICItorS FOR THE EMPLOYER DavId Strang Deputy DIrector Labour PractIce Group Management Board Secretanat HEARING November 27 2002 Apnl22 and 25 May 6 June 2, 3 and 5 and September 17 2003 January 14 May 3 7 19 20 2004 2 DeCISIon [1] The umon filed thIS grIevance m July 2001, allegmg that the Employer had vIOlated ArtIcle 9 1 of the CollectIve Agreement because staff shortages and mmate overcrowdmg at the Toronto JaIl had made It a "hazardous workplace" ArtIcle 9 1 of the collectIve agreement provIdes that 9 1 The Employer shall contmue to make reasonable prOVISIOns for the safety and health of ItS employees durmg the hours of theIr employment It IS agreed that both the Employer and the Umon shall co operate to the fullest extent possIble m the preventIOn of accIdents and m the reasonable promotIOn of safety and health of all employees The relIef sought m the grIevance was that staff levels be restored to full complIment, whIch was alleged to be 141 classIfied correctIOnal officers ("COs") and approxImately 40 casual COs, and that staff be paId compensatIOn "for the addItIonal stress and hazards encountered." [2] The first hearmg date m thIS matter was November 27, 2002 On that day there was agreement that the umon would provIde partIculars of ItS grIevance and that the employer would produce certam documents There was also agreement that the partIes would meet m an attempt to address the ongomg concerns that had led to the filmg of the grIevance Those (and subsequent) dIscussIOns dId not result m a settlement of thIS grIevance The umon then engaged Dr Wayne Lewchuk, who dId a study of the Toronto Jml on whIch he reported m AprIl 2003 The umon delIvered partIculars that referred to and relIed on that study A core theme of the partIculars was that overcrowdmg and understaffing had led to exceSSIVe overtIme that had, m turn, created health hazards The hearmg of eVIdence began m AprIl 2003, almost two years after the grIevance was filed. By August 2003, mmate overcrowdmg at the Toronto JaIl had been elImmated and by December 2003 the staff vacanCIes, If any then remamed, were no longer causmg any sIgmficant resort to overtIme The hearmgs ended m late May 2004 3 The Issues [3] The umon delIvered the followmg partIculars of thIS gnevance m Apnl2003 1 ThIs gnevance IS agamst the f31lure of the Employer to make reasonable prOVISIOns for the health and safety of ItS employees contrary to ItS obhgatIOn as set out m ArtIcle 9 1 of the CollectIve Agreement. 2. SpecIfically the Umon WIll show that at the Toronto J31l. the Employer IS managmg the J31l m a way that unnecessanly Imposes hIgh levels of Job stram effort/reward Imbalance and/or stress on the employees workmg at the J 311. partIcularly on the front Ime correctIOnal officers Poor 31r quahty and hghtmg also contnbute to unreasonable health nsks '3 The det31ls of the Umon s pOSItIon are set out m the attached report by Dr Wayne Lewchuk. The Umon wIlllead eVIdence from Dr Lewchuk as set out m hIs report. We WIll also lead eVIdence to prove the factual elements on whIch Dr Lewchuk s opmIOns are based. 4. The way In whIch the Employer has managed the workplace also has sIgnIficantly mcreased nsks to secunty The det31ls of thIS are descnbed m Dr Lewchuk s report. 5 There are a number of reasonable steps the Employer could take to reduce the Job stram and/or stress levels and the nsks to secunty mcludmg assIgnmg more staff. fillmg vacanCIes reducmg the number of mmates and/or restormg mmate programs 6 Smce 1996 the number of mmates at the J31l has mcreased from about 525 on a d31ly basIs to between 625 and 700 d31ly Most ranges even WIth double bunkmg are desIgned to house a maXImum of 79 mmates Recent counts are runnmg at 99 mmates on each range WIth frequent tnple bunkmg EIght mmates are In segregatIOn umts desIgned to hold a maXImum of five 7 At the same tIme the Employer has f31led to fill vacanCIes No Jobs have been posted at the Toronto J31l for many months The staff complement IS now short 29 full tIme staff and eleven casuals or unclassIfied staff. 8 As a result many staff are workmg exceSSIVe overtIme some reachmg 16 hours a day for seven days a week. The det31ls are m the matenal prOVIded by the Employer and are set out m Dr Lewchuk s report Staff are exhausted. fallmg asleep at theIr posts durmg lunch breaks mdeed at every av31lable opportumty Mental fatIgue IS takmg ItS toll m mIstakes mcreased SIck tIme and heIghtened tenSIOns on and off the Job 9 The Employer IS m breach of the prOVISIOns of the Emplovment Standard... Act respectmg hours of work (SectIOn 18) These prOVISIOns do not chrectly apply to the Employer (the Crown) but we WIll submIt estabhsh reasonable pubhc pohcy standards for the apphcatIOn of ArtIcle 9 1 of the CollectIve Agreement 10 As well, the Employer has cut programs m an effort to free staff to cover the umts Inmates are gettmg less exerCIse for example because there Isn t the staff to supervIse them. NOIse levels have mcreased. Because of a lack of staff, the Employer has often had to lock down mmates m theIr cells All of thIS has senously eroded conchtIOns at the J31l for the mmates addmg m turn to tenSIOn amongst the mmates and potentIal and expenenced dIfficultIes for the staff. 11 The Local Umon has frequently r31sed thIS WIth the Employer but so far no actIOn has been taken. In fact the SItuatIOn has gotten worse over the past number of months 4 12. The Umon seeks a declaratIOn from the Board that the Employer IS m breach of ArtIcle 9 and an order chrectmg the Employer to take remechal actIOn wIthm specIfied tIme lImIts The Umon also seeks compensatIOn for the staff for the mcreased nsks and damage to theIr health and secunty [4] The employer does not dIspute that the Toronto JaIl had staff vacanCIes and hIgh mmate counts at the tIme thIS gnevance was filed, and afterwards The JaIl's management responded to the staffing needs that those and other CIrcumstances created by offermg a substantIal amount of addItIonal work to the JaIl's staff COs on an overtIme baSIS When there were msufficIent volunteers for overtIme, It took measures that temporanly reduced the numbers of correctIOnal officers needed, by cancellmg mmate programs or lockmg down parts of the JaIl, for example OccasIOnally It ordered staff to perform overtIme [5] The employer demes that any of thIS created an mcreased nsk to the safety or health of the JaIl's employees or, If It dId, that there was any reasonable prOVISIOn It could have made that would have reduced that nsk. It demes that correctIOnal officers who performed overtIme fell asleep at theIr posts or otherwIse created secunty nsks, and says that m any event no such problems were ever reported to It by the umon or by any employee It also demes that there was any reasonable prOVISIOn that It had faIled to make m relatIOn to aIr qualIty or lIghtmg or the Impact of eIther on the health and safety of employees of the Toronto JaIl. [6] From the outset, and untIl the very last day of the hearmg, the umon took the pOSItIOn that the employer's alleged breaches of ArtIcle 9 1 had caused health problems actually expenenced by employees at the Toronto JaIl. It WIll not be necessary for me to reVIew the eVIdence offered m support of thIS allegatIOn, nor to comment m any detaIl on the cogency of that eVIdence as proof of the allegatIOn. At the end of the hearmg, durmg argument, the umon abandoned ItS claIm for compensatIOn for any mJury or loss allegedly expenenced by any employee of the Toronto JaIl up to that pomt m tIme I was not asked to find that the III health of any employee of the Toronto JaIl was caused, m whole or m part, by any of the matters complamed of m these proceedmgs [7] The umon contmued to mamtam, however, that COs employed at the Toronto JaIl had been exposed to an mcreased risk of adverse health outcomes as a result of the employer's alleged breaches of ArtIcle 9 1, and that the employer should compensate 5 those employees for theIr havmg been exposed to that mcreased nsk. In addItIon to a declaratIOn that the employer had breached ArtIcle 9 1 and an award of compensatIOn for exposure to nsk, the umon asked that I dIrect the partIes to put m place measures to ensure that the sort of condItIons that led to thIS gnevance are amelIorated qUIckly and appropnately If and when they anse agam, and that the Impact of the condItIons to whIch employees were exposed be studIed over the rest of the employees' lIves so that somethmg IS learned that IS of value m future, all at the expense of the employer and under the superVISIOn of thIS Board by way of my remammg seIsed wIth any Issue that mIght anse concermng the ImplementatIOn of those dIrectIOns Evidence [8] The umon called SIX wItnesses Dr Wayne Lewchuk testIfied durmg the umon's case m chIef and m reply Dr Wayne Lewchuk IS a Professor m the Department of EconomIcs and the Labour StudIes Programme at McMaster UmversIty He has been the DIrector of the Labour StudIes Programme smce 1998 He has been mvolved m studymg the lmk between work orgamzatIOn and health outcomes HIS report refers to the lIterature on that subJect, offers a descnptIOn of the workplace and of the results of mtervIews of several correctIOnal officers, describes the nature and results of a survey of correctIOnal officers that he conducted and sets out hIS conclusIOns Umon counsel acknowledged at the outset that the report's recItal of statements by COs about matters m dIspute could not serve as proof of the truth of those statements m thIS proceedmg [9] The umon also called Chns CrOlsIer, Barry Scanlon and three of the COs who had been mtervIewed by Dr Lewchuk. Mr CrOlsIer IS the PresIdent of the umon local at the Toronto JaIl. Mr Scanlon IS the umon Co ChaIr of the CorrectIOns MmIstry's Employee RelatIOns CommIttee ("MERC") The other three employee wItnesses wIll be referred to here, as they were m Dr Lewchuk's report, as officer #1, officer #6 and officer # 10 [10] The employer called Dr WIllIam Gnam to respond to Dr Lewchuk's report Dr Gnam IS a psychIatnst who also has a graduate degree m clImcal epIdemIOlogy and health care research. He IS a Staff PsychIatnst and SCIentIst at the Centre for AddIctIOn and Mental Health and a staff SCIentIst at The InstItute For Work & Health m Toronto He IS also a Ph. D candIdate m health economICS at Harvard UmversIty 6 [11] The employer also called the current Supermtendent of the Toronto JaIl, Anna GulbmskI, as well as the JaIl's actmg mamtenance coordmator Ms GulbmskI became Supermtendent m October 2002 PrIor to that she had been Deputy RegIOnal DIrector for Central RegIOn, whIch mcludes the Toronto JaIl, smce September 2001 She was Deputy Supermtendent, AdmmIstratIOn at the Toronto JaIl from August 2000 to June 2001, and also worked at the JaIl durmg the perIod of the 2002 strIke She was a Staff RelatIOns officer m the MmIstry for 10 years prIor to August 2000 The Toronto Jail [12] The Toronto JaIl, sometImes referred to m the eVIdence as the Don JaIl, was bUIlt m the 1958 to replace the nearby and much older Don JaIl. All but a small percentage of the mmates mcarcerated at the Toronto JaIl are mdIvIduals aWaItmg trIal or bemg trIed m Toronto courts The JaIl has 504 general populatIOn beds and 57 specIal needs beds Each of the JaIl's general populatIOn ranges has 36 cells wIth two beds each, and a common area contammg tables, televIsIOn sets, telephones and a shower area. The common area of a range IS enclosed by bars COs posted to the range are ordmarIly statIOned outsIde the bars It was the umon's unchallenged eVIdence that, by comparIson wIth other correctIOnal mstItutIOns m the provmce, the Toronto JaIl IS a partIcularly nOISY, smelly, dreary and otherwIse unpleasant place to work, even when It IS not overcrowded or understaffed. [13] The core functIOns of correctIOnal officers mvolve care and custody of mmates Most work as general duty staff on ranges, m segregatIOn areas or m A & D (admIttmg and dIscharge), some work m the control room or as drIvers or laundry superVISIOn. The ranges (A & C ranges) and segregatIOn areas (B landmgs) are where the mmates are housed, fed and spend most of theIr tIme One range (5A) IS a medIcal range where mmates wIth specIal medIcal needs are housed and where mmates needmg medIcal treatment can be attended to by a doctor or nurse before returmng to the regular ranges There IS also a specIal needs umt that houses mmates wIth mental health problems [14] A post audIt conducted at some tIme m the late 1990s determmed that the JaIl needed a staff of 141 full tIme, classIfied correctIOnal officers In addItIon, the JaIl has casual, unclassIfied correctIOnal officers to backfill permanent posItIOns when the 7 mcumbents are absent due to Illness, mJury, vacatIOn and so on. It IS no eVIdence that the post audIt or any other MmIstry or local management rule specIfies that the Toronto JaIl should have any partIcular number of unclassIfied COs on contract at any tIme [15] The number of full tIme posItIOns provIded for m the post audIt complement IS a functIOn of the "budgeted" needs of the mstItutIOn. Some needs are not "budgeted" For example, when an mmate has to go to a hospItal, he must be escorted by two specIally tramed COs That need IS not budgeted. When It arIses, It can only be filled by dIvertmg COs from budgeted needs - by cancellmg yard tIme or mmate programs for whIch CO supervIsIOn would otherwIse be necessary, for example - or by havmg the work performed on overtIme by staff members who would otherwIse be off duty [16] The post audIt contemplated that two COs would be assIgned to each 36 cell range durmg the day, when mmates are out of theIr cells, and one CO when the mmates are locked m theIr cells at mght Once the populatIOn of a range exceeds 72, some mmates have to be housed three to a cell, wIth one of the three sleepmg on a mattress on the floor The JaIl's practIce IS that when the mmate populatIOn m a range exceeds 79, an addItIonal CO IS assIgned to that range both day and mght, and that no more than 99 mmates are housed m a range It IS the umon's belIef that thIS practIce IS a result of an agreement reached durmg negotIatIOns m late 1989 or early 1990 Mr Scanlon testIfied that those negotIatIOns followed protests about overcrowdmg at that tIme at the Toronto JaIl and at other correctIOnal mstItutIOns (I note that reference to those protests appears at page 4 of the Board's decIsIOn m Ulllon Gnevance, 582/90 (Kennedy), to whIch employer counsel referred m argument for other reasons) NeIther party could locate any documentary eVIdence of such an agreement, however [17] Whatever ItS orIgm may be, the JaIl's practIce creates a need for addItIonal posts when mmate counts rIse above the threshold WhIle there IS no eVIdence of how those posts were bemg filled when the grIevance was filled m 2001, It seems reasonable to assume that the approach to staffing then was the same IS It was later, after Ms GulbmskI became Supermtendent She testIfied that the need for those addItIonal posts was not "budgeted," and that the posts were filled by paymg eXIstmg CO staff to do the work on overtIme She noted that casuals are there to backfill for regular posts She 8 stated m cross exammatIOn that whIle "techmcally" she could hIre casuals on straIght tIme to fill these addItIonal posts, "that IS not contemplated" No elaboratIOn or explanatIOn of that statement was sought or offered. The Infrastructure Renewal Project [18] In 1996 the then MmIster announced that a number of the smaller or older correctIOnal mstItutIOns m the provmce would be closed and theIr capacIty replaced wIth new constructIOn. ThIs was the MmIstry's Infrastructure Renewal ProJect The new constructIOn was to mclude a maJor expanSIOn of the Maplehurst facIlIty at MIlton and two new "super JaIls", one to the east and one to the west of the Greater Toronto Area at locatIOns that had not yet been determmed The Toronto JaIl was IdentIfied m the announcement as one of the mstItutIOns that would be closed. Although no specIfic closmg date was announced for the Toronto JaIl, Mr Scanlon testIfied that the tIme frame the umon was gIven at the tIme of the announcement was 36 to 48 months [19] At the tIme of that 1996 announcement and afterwards, the umon agreed that older facIlItIes should be closed and replaced wIth new constructIOn, but questIOned the strategy of replacmg them wIth superJaIls, partIcularly superJaIls located at a dIstance from the Toronto area. Mr Scanlon testIfied that the MmIstry's plan was described to the umon as a "bed neutral exercIse" m whIch the total number of mmate beds m the provmce would not change ThIs would necessarIly result m a net decrease m the number of beds wIthm easy drIvmg dIstance of Toronto courts For that and other reasons, the umon's VIew was that more beds would be needed m the Toronto area than the government planned to have WhIle sentenced mmates could be housed anywhere, remanded mmates generally had to be housed wIthm a reasonable drIvmg dIstance from the courts m whIch they were scheduled to appear Most of the populatIOn at the Toronto JaIl were remanded mmates Beds located well outsIde the Toronto area were not gomg to reduce the demand for remand beds wIthm the Toronto area. The umon's VIew was that even If the remand populatIOn dId not mcrease, the employer could not close the Toronto JaIl wIthout replacmg It WIth new beds m the Toronto area. [20] The MmIstry's plan gave rIse to concerns about the redeployment rIghts of staff at mstItutIOns scheduled to close That became the subJect of negotIatIOns between umon and employer representatIves at the MmIstry Employment RelatIOns CommIttee 9 ("MERC") Those negotIatIOns led to several complex agreements, one of whIch provIded, among other thmgs, that staff at mstItutIOns wIth announced closmg dates would have the opportumty to transfer to vacant posItIOns at mstItutIOns that were not closmg or, m the case of the Toronto JaIl, not yet scheduled to close Understaffing [21] The 1996 announcement created Job securIty concerns for COs who worked at mstItutIOns IdentIfied for closure, mcludmg those at the Toronto JaIl. Some officers at the Toronto JaIl obtamed employment elsewhere, transferred to other mstItutIOns, qUIt, retIred, or took a leave of absence wIthout pay to keep theIr optIOns open whIle pursumg employment outsIde the OntarIO PublIc ServIce Mr CrOlsIer testIfied that "qUIte a few" left, and that (as of June 2003) there had not been a full staff complement at the JaIl smce 1997 When thIS grIevance was filed m July 2001 there were 11 acknowledged vacanCIes m the JaIl's complement of classIfied COs In addItIon, some of the mcumbents of posItIOns not consIdered vacant were on leaves of one kmd or another or had work restrIctIOns that the employer was accommodatmg [22] Employer counsel put It to Mr Scanlon m cross exammatIOn that the MERC agreements had affected the abIlIty of the Toronto JaIl to post and fill vacanCIes Mr Scanlon acknowledged that the first MERC agreement made vacanCIes avaIlable first to staff at closmg mstItutIOns on a lateral transfer basIs That agreement was fully Implemented by the end of June 2001, he saId, and was not an ImpedIment to the fillmg of vacanCIes thereafter That eVIdence was not contradIcted. No more than one of the 11 vacanCIes at the Toronto JaIl was filled pursuant to that agreement The eVIdence before me IS that the number of unfilled vacanCIes mcreased thereafter In hIS testImony Mr CrozIer noted wIthout challenge that at one pomt after July 2001 there had been 36 vacanCIes m the complement. [23] Mr CrOlsIer described the MmIstry's polIcy on fillmg vacanCIes as a "mysterIous subJect." Apart from vacanCIes, some permanent COs had been on LTIP, or short term sIckness, or other forms of leave, and the JaIl's management had also drawn on the CO complement to fill actmg posItIOns m the first level of management, all of whIch had reduced the number of COs aVaIlable to perform work m the JaIl. He also testIfied that the number of casuals avaIlable to the Toronto JaIl had dwmdled when they could see 10 no path to long term employment at the mstItutIOn, that mstItutIOns not destmed to close were more attractIve to new recrUIts He belIeved that new recrUIts had been actIvely dIscouraged from gomg to mstItutIOns destmed to close, but the umon presented no dIrect eVIdence of thIS Inmate OvercrowdIng [24] Ms GulbmskI was a member of the commIttee that had developed the Infrastructure Renewal ProJect m the mId 1990s She testIfied that the commIttee and ItS advIsors dId not predIct or antIcIpate that the remanded mmate populatIOn would mcrease thereafter, nor that voluntary eXIt optIOns would be taken by as many correctIOnal staff as actually dId so followmg the 1996 announcement I am not called upon to assess whether those expectatIOns were reasonable havmg regard to the mformatIOn avaIlable to the commIttee at the tIme [25] In fact, the number of remanded mmates bemg tned m Toronto area courts rose steadIly after 1996 Ms GulbmskI testIfied that It seemed to Mmlstry officIals, at least m retrospect, that the causes of the mcreased numbers of remanded mmates mcluded mcreases m the tIme taken to process ball applIcatIOns and complete tnals, and government polIcIes lImltmg prosecutonal dIscretIOn to consent to ball for persons accused of certam cnmes, whIch had the foreseeable effect of mcreasmg the number of remanded accuseds who were mcarcerated pendmg tnal. The mcreased amount of JaIl tIme per remanded mmate mcreased the number of such mmates m the JaIl at anyone tIme Because Judges tend to gIve credIt for tIme served when Imposmg sentences, the mcreased pre-tnal tIme served led to decreased perIOds of post convIctIOn mcarceratIOn, further mcreasmg the ratIO of remanded mmates to sentenced mmates and addmg to the pressure on mstItutIOns lIke the Toronto JaIl that acted pnmanly as detentIOn centres for remanded or unsentenced mmates [26] By the end of 2000, the mmate populatIOn at the Toronto Jml had reached about 575 In early 2001 It mcreased rapIdly to between 630 and 640 By the tIme thIS gnevance was filed It had reached 650 The other two detentIOn centres m the Toronto area (Toronto East DetentIOn Centre and Toronto West DetentIOn Centre) had also had populatIOn mcreases, and could not relIeve the overcrowdmg at the Toronto JaIl. 11 [27] The steady mcrease m mmate populatIOn at detentIOn centres, partIcularly m the Toronto RegIOn, was documented by the StatIstIcal ServIces branch of the Mmlstry's CorrectIOnal ServIces DIVISIOn m October 2002 m a report entItled "Adult CorrectIOnal InstItutIOns Court ACtIVIty Related to Remands 1995/96 - 2001/02" In partIcular, It noted that from 1995/95 to 2001/2002, the average remand populatIOn at the Toronto JaIl had mcreased 356 percent, the average length of tIme on remand had mcreased 14 7 percent, and the utIlIzatIOn rate had mcreased from 1068 percent to 127 5 percent. From the yearly figures shown m that report, the fallacy of ItS 1996 assumptIOn that the provmce's remanded mmate populatIOn would not mcrease thereafter must have been apparent to the Mmlstry well before 2001 [28] As a result of the planned constructIOn at Maplehurst, by Apnl or May of 2001 there were more beds at that facIlIty than were needed for ItS eXlstmg mmate populatIOn. The Mmlstry's ongmal plan had been that once those extra beds were avaIlable at Maplehurst It would close the Cambndge Waterloo DetentIOn Centre and the Wellmgton DetentIOn Centre and transfer the mmates m those mstItutIOns to Maplehurst. Mr Scanlon testIfied that m early 2001 the umon proposed to the employer that It delay the closure of the Waterloo and Wellmgton facIlItIes, and use the addItIonal Maplehurst beds to deal wIth the overcrowdmg at the three detentIOn centres m Toronto The mformatIOn that the umon had been gIven by the employer at the tIme was that the Wellmgton DetentIOn Centre was m good condItIon, and that the only mechamcal or structural Issue at the Cambndge Waterloo DetentIOn Centre was an HVAC problem that could be repaIred for $10,000 The employer dId not do as the umon suggested, however It closed the Cambndge Waterloo DetentIOn Centre and the Wellmgton DetentIOn Centre and transfer the mmates there to Maplehurst And the mmate populatIOn at the understaffed Toronto JaIl contmued to nse [29] It was put to Mr Scanlon m cross exammatIOn that the staff of the Wellmgton and Waterloo mstItutIOns was needed at Maplehurst m order to staff the new beds there Mr Scanlon responded that whIle the Cambndge Waterloo DetentIOn Centre and the Wellmgton DetentIOn Centre were both closed m July 2001, almost none of the staff at those mstItutIOns actually started at Maplehurst untIl the followmg May Durmg the mtervenmg 10 months they were deployed to other mstItutIOns m the Western RegIOn. He saId that durmg that 10 month perIOd Maplehurst was operated usmg the staff It 12 had had before the addItIonal beds were avmlable there HIS testImony m that regard was uncontradIcted. [30] Respondmg to Ms GulbmskI's testImony that the overcrowdmg and understaffing at the Toronto JaIl m 2001 had not been somethmg the Mmlstry had antIcIpated before 1996 when It announced ItS plan, umon counsel put It to her m cross exammatIOn that "you could have changed the plan." She answered "I'm not at that level." No one from "that level" testIfied m thIS proceedmg There IS no eVIdence before me to explam why the government faIled to adJust the ImplementatIOn of the Infrastructure Renewal ProJect when It became apparent that central assumptIOns of the ongmal plan were mcorrect and that thIS was creatmg adverse consequences for the Toronto JaIl, mcludmg very substantIal overtIme usage at premIUm rates The Sabotage Report [31] In Apnl 2001 the umon publIshed a report entItled "Sabotage How Harns government polIcIes have mcreased the use of sIck tIme by OntarIO correctIOnal officers" The report was a response to statements by the then Mmlster that the use of sIck tIme by correctIOnal officers was "too hIgh", and that If sIck tIme was not reduced the government would take correctIve actIOn, such as pnvatIzatIOn of pnsons In late February 2001 CBC RadIO had asked the Mmlster what he thought was causmg the hIgh sIck tIme use, and he had replIed that he dId not know WIth reference to the questIOn that the Mmlster had been asked, the umon's Sabotage report saId that ThIS report provIdes the answer Followmg Sterlmg s comments the OntarIo Pubhc ServIce Employees Umon surveyed umon locals m 44 OntarIo correctIOnal facIhtIes (see AppendIx) Survey results confirm that sIck tIme use IS chrectly Imked to pohcy decIsIOns of the MmIstry of CorrectIOns . Chromc overcrowdmg 61 per cent of mstItutIOns surveyed were operatmg over capacIty l.e. WIth more mmates than beds on a regular or dmly basIs . Overcrowdmg has led to mcreased tenSIOn behmd bars resultmg m mcreased threats and vIOlence to staff. 86 per cent of facIhtIes reported an mcrease m threats to staff by mmates 80 per cent reported an mcrease m assaults on staff by mmates ActIve mmate gangs were reported m '39 per cent of facIhtIes . 77 per cent reported an mcrease m the number of contraband Items bemg found m searches 64 per cent reported findmg kmves and shIvs 89 per cent reported fmdmg drugs 13 . Detenoratmg hygIene as a result of cuts to cleamng and mamtenance poses a senous health hazard m the mstItutIOns 45 per cent of umon locals rated hygIene at theIr mstItutIOns as eIther poor or very poor . DIrty overcrowded conchtIOns mean many staff have been hIt by mfectIOus chseases runnmg rampant m the mstItutIOns 65 per cent reported outbreaks of commumcable chseases such as tuberculosIs hepatItIs menmgItIs and scabIes Staff have been mfected through contact WIth mmates m 44 per cent of mstItutIOns . Cuts to health and SOCIal programs m the commumty have resulted m an mcreased number of hIgh mamtenance mmates such as those WIth psychIatnc problems or developmental chsabIhtIes 100 per cent of mstItutIOns reported an mcrease m the number of these mmates bemg mcarcerated. Only 2'3 per cent of mstItutIOns have a specIal needs umt for housmg these mmates . Trammg standards for new (contract) employees are m dIsarray 61 per cent of facIhtIes saId new correctIOnal officers are never evaluated after theIr onentatIOn penod. . 95 per cent of mstItutIOns reported mcreasedlevels of psychologIcal chstress among staff. resultmg m frequent Illness depressIOn. famIly and mantal problems substance abuse anger pamc attacks and. as a result mcreased absence from work. The mexcusable conchtIOns found m Ontano correctIOnal facIhtIes are the dIrect result of pohcy deCISIOns of the MmIstry of CorrectIOns Staff do not cause the overcrowdmg that leads to mcreased tenSIOn. Staff are not responsIble for the program cuts mSIde the facIhtIes Nor are they responsIble for program cuts m the commumty that put more hIgh mamtenance mchvIduals behmd bars Staff chd not cut cleanmg and mamtenance of the mstItutIOns Staff have not reduced officer trammg standards Staff do however have to bear the consequences of these dangerous pohcIes The mformatIOn summanzed here draws a gnm pIcture of the hfe of an Ontano correctIOnal officer It tells the truth about the awful deCISIOns that have systematIcally dnven up SIck tIme use m correctIOnal facIhtIes In cross exammatIOn, Mr Scanlon acknowledged that the Sabotage report dId not IdentIfy correctIOnal officers' workmg large numbers of overtIme hour as a health problem. Local Health and Safety ComplaInts [32] A MmIstry of Labour document dated February 21, 2001 refers to a work refusal by someone at the Toronto JaIl relatmg m some way to "aIr qualIty" The document IS marked as bemg the first of three pages NeIther of the partIes was able to locate the other two pages The document records that "The aIr qualIty Issue m the mstItutIOn" was to be addressed as a concern by the mstItutIOn's Jomt Health and Safety CommIttee ("JHSC") 14 [33] In late Apnl 2001, Mr CrOlsler contacted the OccupatIOnal Health and Safety Branch of the Mmlstry of Labour concermng management's response to earlIer complamts and requests for documentatIOn that he had made The contemporaneous notes of Dan Stevens, the JaIl's Deputy Supermtendent, descnbe those complamts as "relatmg to staff shortages, exceSSIve overtIme and overcrowdmg and theIr effect on health and safety" A document Issued Apn126, 2001 by Mr McNamara, the health and safety officer who mvestIgated the matter, recorded that at that pomt Mr CrOlsler was concerned about management's faIlure to provIde hIm wIth "reports or mformatIOn on staffing and mmate populatIOn and agreements" and that "thIS Issue" "was the cause of a recent work refusal." Apparently the employer's mltIal response to Mr CrOlsler's requests for mformatIOn had been that whIle the mformatIOn would be made avmlable to the JHSC, Mr CrOlsler would have to file a Freedom of InformatIOn request to obtam It Mr McNamara's document stated that management had apparently been unaware that Mr CrOlsler was a member of the JHSC, and when thIS was venfied management had agreed to provIde the requested mformatIOn, and to mclude "mformatIOn on Issues of overtIme whIch may contribute to potentIal fatIgue sItuatIOns" The document stated that m addressmg the staffing Issues the partIes should address certam questIOns, mcludmg whether a supposed wntten agreement dated November 27, 1989 remamed m effect [34] Deputy Supermtendent Stevens responded as follows by letter dated May 23, 2001 Dear Mr McNamara I am wntmg m response to your report Issued on the 26 of Apnl 2001 concermng staffing Issues at the Toronto JaIl. In your report you have stated, 'In addressmg the staffing Issues the partIes shall address adchtIOnalItems such as A) Are the Employer s best practIces bemg currently met B) Comphmentmg task s through the Employer s Pohcy and Procedures C) Has the ratIO of guards to mmate populatIOn changed recently or sIgmficantly D) Vacant staff posItIons that rem am unfilled. E) DIscussed the correspondence dated November 27 1998 [SIc] m whIch staffing concerns are to be addressed mternally Please confirm If thIs wntten agreement remams m effect or not After havmg consulted WIth Mr CrOlsIer on the Issues of the report I offer the followmg as the Employer s response to each 15 A) Yes the employer s best practIces are currently bemg met to every extent possIble B) Management contmues to evaluate the extent to whIch they can offer programs based on staffing levels and to ensure to the extent possIble Its pohcIes and procedures are bemg mamtamed and enforced. C) The Mimstry does not staff Its InstItutIOns based on ratIO of mmates to correctIOnal officers The InstItutIOns complement IS determmed through Mimstry approved post allocatIOns D) Management recogmzes and contmues to address the staffing needs of the mstItutIOn m accordance wIth the Mimstry s staffing pohcIes and procedures The Employer and the Umon, through the MmIstry ERC (MERC) have negotIated an agreement whIch currently precludes the mstItutIOn from fillmg ItS vacanCIes (see attached) Staff has been kept appraIsed of Issues related to thIS area of concern. (see attached) E) You have IdentIfied through your own sources a document dated November 27 1989 whIch the employer does not have m ItS possessIOn. A letter dated May 8 2001 was forwarded to Mr J Goverde Umon Co-ChaIr on the Jomt Health & Safety CommIttee requestmg productIOn of the saId document. (see attached) To date none has been forthcommg. In the absence of the November 27 1989 document that you have made reference to the employer confirms that the past practIce of havmg an adchtIOnal staff member assIgned to the hvmg umts whenever the mmate umt count goes beyond a count of seventy-mne (79) WIll contmue. [35] A MmIstry of Labour document dated May 29, 2001 refers to a work refusal by Mr CrOlsIer concermng fire fightmg eqUIpment, temperature control and ventIlatIOn problems Concerns IdentIfied m the health and safety officer's report mclude the condItIon of two fire extmgUIshers, fluctuatmg temperatures, and an allegatIOn that the ventIlatIOn system had not been mamtamed to provIde a safe, clean or adequate supply of aIr "for the overcrowdmg condItIon." Mr CrOlsIer had apparently alleged that the ductmg was partIally plugged and was "Inadequate for the bUIldmg because of overcrowdmg" Management was asked to provIde documentatIOn on the mamtenance of the system and have It mspected "for SIgns of exceSSIve bUIld up, pluggmg or mold" [36] Mmutes of the June 21,2001 meetmg of JHSC record the followmg RevIew of Work Refusals RevIew of work refusals dated Apn12 '3 G 21 May 9 25 and June 19 2001 Issues of concern AIr Quahty TB and Staffing levels As the aIr hancllmg system IS currently bemg worked on. It was agreed that upon the completIOn of the repaIrs a report would be requested to IdentIfy the status of the AJT Hancllmg System. In the mtenm Mamtenance WIll be addressmg the cleanmg of the vents (surface) throughout the InstItutIOn. The cleamng of the complete aIr handlmg system was completed (December 1999) wIthm the recommended three ('3) year penod. 16 Current Mimstry PolIcy addresses the Issue of Inmates who are suspected of bemg a carner of a commumcable chsease the CommIttee recommends that the Health Care Staff contmue to IdentIfy the potentIal mmates at nsk and follow the establIshed gmdelmes It IS further recommended. that a member of the Health Care Team prOVIde a seSSIOn to staff on commumcable chseases durmg CPR and FIrst ",lid Courses Management recogmzes and contmues to address the staffing needs of the mstItutIOn m accordance WIth the Mimstry s staffing polICIes and procedures The Employer and the Umon, through the MmIstry ERC (MERC) have negotIated an agreement whIch currently precludes the mstItutIOn from fillmg ItS vacanCIes We WIll contmue to appraIse staff on Issues related to thIS area of concern. [37] A subsequent MmIstry of Labour report dated July 25, 2001 deals WIth management's alleged fmlure to do as the report of AprIl 26, 2001 had contemplated The employer was formally ordered to have a qualIfied hygIemst conduct an mr qualIty assessment of the facIlItIes' ventIlatIOn system to determme whether It "IS adequate for the current populatIOn and VISItors therem," and prOVIde that report to the MmIstry of Labour by September 2001 The reqUIred testmg was done by a thIrd party consultant m August 2001 The consultant's report was delIvered to the MmIstry of Labour m early September, under cover of a letter mdIcatmg that It was management's mtentIOn to comply WIth the recommendatIOns m the report [38] The consultant's report noted mInor defiCIenCIes and Issues that needed addressmg, but overall concluded that the ventIlatIOn system was generally m good condItIon and was supplymg adequate ventIlatIOn for the then current level of occupancy The report made these findmgs WhIle the quantIty of aIr supplIed to a work area IS vItal for chlutmg odours and other contammants IAQ complamts may be related to comfort rather than contammant levels Temperature and relatIve humIdIty can play a role m how people perceIVe theIr enVIronment. Thermal comfort as defined earlIer IS a functIOn of temperature humlChty and aIr motIon. Overall, temperature readmgs were measured to be pnmanly wIthm the ASHRAE recommended comfort range of 22.5 to 26 ODC for summer months RelatIve humIchty was also measured to be wIthm recommended comfort lImIts Under these conchtIOns the maJonty of bmldmg occupants should feel comfortable The determmatIOn of C02 levels serves as a useful mdex of the degree of exchange of outSIde aIr WIth bmldmg aIr Although the TWAEV for C02 IS 5 000 ppm and the ALTER for C02 IS ::; '3 500 ppm It has been suggested that mdoor aIr havmg CO2 concentratIOns above 800 ppm can lead to occupant chscomfort (such as the onset of headaches or fatIgue) espeCIally at elevated temperatures When the mdoor envIronmental concentratIOn reaches 800-1 000 ppm complamts may escalate As the carbon choxIde levels mcrease further the number of complamts WIll mcrease sIgmficantly 17 Carbon choxIde concentratIOns were noted to shghtly exceed recommended ASHRAE gmdelmes m only a few Cells Areas and Guard StatIOns durmg peak usage tImes Most of the areas whIch had readmgs exceedmg 800 ppm of C02 were 10cated m the basement and on the second floor of the bmldmg In all other areas tested. CO2 concentratIOns remamed below 800 ppm for most of the tIme samples were taken. Thus our samplmg results suggested that the HVAC systems servmg the office pubhc and general areas were supplymg adequate amounts of fresh mr to maJonty of areas tested gIVen current occupancy conchtIOns (1.e to satIsfy a mmImum of 20 CFM/person of fresh outsIde mr) In the Cells areas where C02 concentratIOns exceeded 800 ppm and Guard StatIOns whIch had C02 concentratIOns above 1 000 ppm a thorough reVIew and mspectIOn of the HVAC chstnbutlOn system should be performed and re-balancmg may be reqmred m these areas to ensure that enough fresh mr IS actually reachmg these areas durmg maxImum/peak occupancy reqmrements/conchtIOns Although some areas were noted to exceed ASHRAE gmdelmes durmg peak occupancy penods C02 concentratIOns remamed well below Health Canada s recommended ALTER of::; '3500 ppm. Thus It should be emphasIzed that the CO2 concentratIOns measured m these areas may represent a comfort concern and are not a chrect mchcatIOn of potentIal health concerns A.lr flow measurements appeared to mchcate that the mam ABUs are performmg close to theIr mtended deSIgn. Measurements also mchcate that gIVen current capaCIty there should be ample quantItIes of outdoor mr supphed to all the occupIed spaces Thus any area where shghtly elevated C02 concentratIOns were detected, may reqmre some mochficatIOns an/or mamtenance to the HVAC systems to ensure that there are no blocked, leakmg or damaged supply ducts Improper supply mr balancmg or short cIrcmtmg Mr CrOlsIer testIfied that the employer had done what the order reqUIred He complamed that although the ducts were cleaned at that tIme, they had not been cleaned smce He acknowledged that at the tIme of hIS testImony there was no outstandmg order reqUIrmg that the employer do that, "yet" [39] Mmutes of the September 25, 2001 meetmg of the JHSC record as follows The meetmg was called to dISCUSS a number of Issues brought forward by Mr Chns CrOlsIer durmg a work refusal on Saturday September 22 2001 2. HIgh Count of mmates m the Toronto Jml. as IdentIfied m the FIre Safety PIan CnsIs Management pIan and the CorrectIOnal FacIhty Profile '3 Staffing shortages mcluchng managers It was agreed that the commIttee would dISCUSS each pomt separately The followmg are the responses to each pomt. 2. HIgh counts Employee s pOSItIon IS that three separate IdentIfied counts for the Toronto Jml. The first IS found m the FIre Safety PIan whIch IdentIfies the count as approxImately 640 the CnsIs Management PIan whIch states 18 wIthm the descnptIOn of the bmldmg an operatIOnal capacIty of 561 and the CorrectIOnal FacIhty Profile has the count as 560 The commIttees do not agree on thIs Issue referred to the ProvmcIal Health & Safety CommIttee '3 Staffing shortages mcludmg managers IS not the responsIbIhty of the Jomt Health & Safety CommIttee The operatlOnal manager m consultatlOn the [SIc] On call AdmmIstrator WIll determme based on staffing the extent to whIch we can offer any programs ThIS m no way prohIbIts staff from exercIsmg theIr ntes [SIc] under the Health & Safety Act There IS no eVIdence about the outcome (If any) of the referral of Item 2 to the ProvmcIaI Health and Safety CommIttee Overtrme Work [40] OvertIme opportumtIes at the Toronto JaIl are allocated m accordance WIth a protocol agreed upon by the umon and the employer Officers sIgn a sheet mdlcatmg the shIfts when they WIll be avaIlable to perform overtIme durmg the followmg month. When an overtIme opportumty arIses and more than one officer has sIgned as avaIlable for that shIft, the opportumty IS offered to the avaIlable classIfied CO WIth the lowest number of overtIme hours worked that month, or to the most semor of such officers when two or more have the same number of overtIme hours worked m the month. If the offer IS declmed, the opportumty IS then offered to the next of the avaIlable classIfied officers m accordance WIth thIS least hours/semorIty test. If none of the avmlable classIfied officers agrees to work the overtIme, It IS then offered to any casual COs who have mdlcated that they would be avaIlable [41] If there IS stIll overtIme work to be assIgned after thIS protocol IS exhausted, the employer canvasses COs who have not mdlcated that they would be avmlable The employer has the rIght to reqUIre officers to work overtIme If there are msufficlent volunteers, but that rIght was seldom exercIsed, eIther before or after the grIevance was filed, and never after Ms GulbmskI became Supermtendent When the number of COs avaIlable on regular hours or voluntary overtIme was not enough to staff all the reqUIred posts, the JaIl's management preferred to adJust the operatIOn of the JaIl to reduce the number of staff reqUIred [42] Mr CrOlsler testIfied that when the employer could not fill posts m the day shIft, It would first cancel the two yard officers and the program officer who transport mmates to the yard or to programs (educatIOn, AlcoholIcs and NarcotIcs Anonymous, 19 John Howard, SalvatIOn Army, church and clergy groups, and so on) m the fifth floor programs area. WIthout officers for those posts, the mmates' yard tIme and programs would be cancelled If there were stIll not enough officers to fill the remammg posItIOns, the employer would start lockmg down ranges - lockmg mmates m theIr cells and puttmg the range mto "mght" mode, whIch elImmated the need for one officer on each locked down range If some of the needed overtIme work mvolved hospItal escort dutIes, arrangements were made to hand over custodIal responsibIlIty for the escorted mmates to off-duty Toronto polIce officers (paId by the Mmlstry) at the hospItal. [43] The JaIl has always had overtIme work and a group of officers who were eager to perform It Mr CrOlsler testIfied that there was a core group of about ten officers who worked most of the avaIlable overtIme m the 1990s As the number of avaIlable overtIme hours mcreased, more classIfied staff began workmg substantIal numbers of overtIme hours Officers were workmg 70 or 80 hours per week m some cases In 2001, four or five officers at the Toronto Jml earned over $100,000 dollars each as a result of theIr performmg substantIal amounts of overtIme In 2002, eIght officers earned over $100,000 despIte bemg off work for several weeks as a result of the strIke that year In Mr CrOlsler's VIew, some officers could handle that amount of work well, but most could not. [44] Some correctIOnal officers at the Toronto Jml worked no overtIme Mr CrOlsler testIfied that "the half' who worked no overtIme had to work wIth those who dId He saId that those who dId work overtIme were often lazy, lethargIc, and tIred at work, complamed of aches and pams and headaches, and would sleep durmg theIr breaks and take breaks of up to two hours Some staff would come m for a 12 hour shIft and arrange wIth theIr partners to alternately work two hours and take two hours off. SupervIsors were glad to have staff come m, so those bemg asked to work overtIme could pIck where, when and how long they worked Mr CrOlsler saId that superVIsors and schedulmg officers also used "gUIlt trIpS" to mduce reluctant officers to work overtIme for example, they would tell an officer that "the guy you work wIth today won't get breaks tomorrow" unless the officer volunteered to work overtIme In cross exammatIOn he acknowledged that the two mdlvlduals who generally arranged for overtIme were employees m the bargammg umt domg what would otherwIse be a management Job 20 [45] Mr CrOlsler testIfied that staff members were frustrated by theIr partners' sleepmg Verbal altercatIOns between officers were a regular occurrence He had even wItnessed a physIcal altercatIOn among staff m the staff lounge over a staff member's faIlure to respond to a code [46] Mr CrOlsler saId hIS own expenence was that when he worked overtIme he was tIred, dId not get enough fresh aIr, dId not eat well and started lettmg thmgs go ThIs led to secunty lapses, he saId leavmg doors open when they should have been closed, for example He saId he dId not know why he had accepted so much overtIme, he later saId that loss of mcome durmg the stnke was part of It HIS belIef was that the motIves of other officers for workmg overtIme were complex, and mcluded "greed" He doubted that the officers who worked a lot of overtIme worned about the health consequences He felt that those who worked overtIme were Jeopardlzmg the secunty of the mstItutIOn, and stated that there were secunty lapses dally Apart from the references to doors bemg left open, he gave no examples of thIS Nor was there any eVIdence that he had reported any of these alleged breaches of secunty to management [47] Mr CrOlsler testIfied that m the perIOd pnor to the filmg of the gnevance and afterwards he had felt frustrated by management's mactIon concermng vacanCIes and overcrowdmg, and frustrated by management's faIlure to take hIS concerns serIOusly He saId staff had not felt supported m theIr Jobs by management. He observed that as of June 2003, when he testIfied, thmgs had greatly Improved m terms of support at the level of the mstItutIOn as a result of Ms GulbmskI's appomtment as Supermtendent, but remamed ummproved at hIgher levels m the Mmlstry [48] Officer #10 has been a correctIOnal officer smce February 1989 She had not sought or worked overtIme She had been asked to work overtIme, and had sometImes been told by a Captam or the general duty manager "your partner wIll be workmg alone" If she dId not work overtIme StIll, she had not worked overtIme She saId that durmg the 2000 - 2001 perIOd she was often workmg alone or wIth a partner who was "too tIred" from workmg overtIme The partner would want to work at the desk whIle she dId the "runmng around." She found her work more exhaustmg as a result She testIfied that on more than one occaSIOn her partner had fallen asleep sIttmg besIde her for "maybe Just a few mmutes," and she had had to nudge hIm awake In cross 21 exammatIOn she could not gIve specIfic dates for these fallmg asleep mCldents She saId that the last occaSIOn was m the prevIOUS two weeks and that It had not caused any partIcular problem. She stated that she found thIS embarrassmg when It occurred m the presence of other, non custodIal JaIl staff. She added that she also "felt unsafe" She complamed that superVIsors were not domg as many tours of the floors as they used to do, were not supervlsmg, were not dealmg wIth COs who took breaks of more than an hour She thought that superVIsors are aware of what was gomg on, and felt that It should not be her Job to tell co. workers that what they were domg was wrong She acknowledged that she had not reported any of her concerns to management, and could not recall any occaSIOn when a superVIsor had seen her partner asleep at hIS or her post. [49] Officer #10 testIfied that the mstItutIOn was dIrtIer and nOISIer than It had been when she started. Those who worked overtIme were generally IrrItable, she saId, and It was hard to get the work done when there IS fightmg over who wIll do what. She acknowledged havmg saId the thmgs attributed to "#10" m the Lewchuk report These mcluded a deSCrIptIOn of an mCldent m whIch she was asked by a manager to deal wIth a lawyer VISIt and she responded that she was alone There are supposed to be two officers present when an mmate IS out of the cells She saId the manager offered to come and SIt WIth her m a few mmutes If she would handle the VISIt, and then had never shown up Officer #10 dId not claIm that thIS or any other alleged transgressIOn by a superVIsor had been the subJect of complamt to management [50] Officer # 10 referred to officers "cuttmg corners" and superVIsors Ignormg the fact She acknowledged that officers had dIscretIOn as to how they dId theIr work, as long as they "followed the rules" or stayed "wlthm parameter" She dId not expressly claIm to have seen a co. worker fall to follow the rules or stay wlthm the parameters, nor that she had reported to a superVIsor or seen a superVIsor Ignore a co.worker's havmg done so She answered "yes" to the questIOn whether managers had overlooked her domg thmgs she was not supposed to do, thmgs outsIde her normal dIscretIOn. She was not asked to elaborate on those answers, however, and It IS not apparent that these mCldents, whatever they were, mvolved securIty breaches or resulted m some way from understaffing, overcrowdmg or relIance on overtIme 22 [51] Officer #1 has been a correctIOnal officer for 14 years He dId not work overtIme As Mr CrOlsler and Officer #10 had done, he testIfied about officers' sleepmg m the guard room or staff lounge and takmg long breaks When It was put to hIm m cross exammatIOn that he had not reported to a superVIsor that someone had "deserted hIS post" by takmg a break that was too long, he replIed that he had done so He saId that the supervIsor's response to hIS report was "your partner fucked you over" He dId not know whether the superVIsor had spoken to hIS partner as a result, but answered "yes" when asked whether hIS partner seemed aware that the wItness had spoken to the superVIsor about hIm. Officer #1 also referred to an mCldent m whIch hIS backup "fell asleep on hIS feet" whIle the wItness was supervlsmg showers He acknowledged that he dId not know how much overtIme, If any, that CO had been workmg m the penod pnor to the mCldent, but he assumed that he had been workmg overtIme He dId not claIm to have reported thIS or any other sImIlar mCldent to management. [52] Officer #1 testIfied that he had saId the thmgs attributed to hIm m the Lewchuk report, mcludmg thIS observatIOn In the current clImate everybody IS needed, so If you are casual and you don't want to work or you Just want to screw around all day long well you can get away wIth It Because they have no means of dealmg wIth It now He also testIfied that he had observed co-workers paymg no attentIOn to temporary superVIsors from the bargammg umt who (m hIS VIew) would not know how to Impose dlsclplme and, If they dId, would be chastIsed for domg so when they returned to the bargammg umt He observed that the level of conflIct between officers had gone up as the amount of overtIme worked went up He saId that verbal confrontatIOns between officers were a regular occurrence and that he had had to step m between officers to prevent a phYSIcal altercatIOn. He dId not elaborate on the apparent causes of the confrontatIOns, or suggest that they had been wItnessed by or reported to management. [53] Officer #6 IS one of the small number of classIfied COs who have always worked consIderable amounts of overtIme When he started as a part-tIme CO he worked two Jobs After he became a full-tIme CO m 1994 he worked an extra shIft of 10 to 12 hours weekly As tIme went on thIS mcreased to two or three overtIme shIfts a week, even before there was any overcrowdmg or sIgmficant staff shortage HIS regular work schedule IS a combmatIOn of 8 and 12 hour shIfts In addItIon to workmg shIfts on hIS 23 scheduled days off, he has also worked "doubles" - 16 hours at a tIme a regularly scheduled 8 hour shIft ImmedIately followed or proceeded by and 8 hour overtIme shIft. ThIs officer testIfied that he had often worked three to five doubles m a row, and had once worked 18 doubles m a row He saId he worked at least 60 hours a week every week. He explamed that he was domg It for money, because the JaIl was closmg he mIght not have a Job later, so he felt he had to make money now He also mentIOned that sometImes he decIded whether to stay based on how badly they need hIm at the JaIl, that he felt an oblIgatIOn to coworkers In cross examInatIOn, Officer #6 acknowledged that when he completes the forms for the overtIme protocol he shows that he IS avmlable for every shIft for whIch he IS not already scheduled, and he rarely refuses an opportumty to work overtIme He too testIfied that those workmg overtIme were tIred, sleepy and confrontatIOnal. [54] Mr CrOlsler and officers #1 and #6 all testIfied that by 2000 or so the workmg of overtIme had become competItIve among certam officers, that they compared the number of hours worked and the figures mcome reported annually for CIVIl servants earmng over $100,000 dollars and tned to outdo one another m numbers of hours worked and amounts of mcome earned [55] Mr Scanlon agreed m cross exammatIOn that nearly all correctIOnal mstItutIOns have a protocol wIth respect to the allocatIOn of overtIme opportumtIes He conceded that a CO who was not offered an overtIme opportumty to whIch he or she was entItled under the applIcable protocol would have the nght to gneve, and that there are qUIte a few gnevances about allocatIOn of overtIme across the system. When asked whether the umon would obJect If an officer was refused an overtIme opportumty because the employer thought s/he had already worked too many hours, he replIed that It would depend on the mdlvldual cIrcumstances, mcludmg whether there had been complamts that the person was not functIOnmg He agreed that management would have to pomt to eVIdence that the person was not capable of performmg the Job He noted that he had made a health and safety complamt and had someone sent home who was scheduled to work 32 hours m a 36 hour perIOd He saId that there IS a practIce that someone should not work more than 16 hours at a stretch, wIth 8 hour breaks before and after 24 [56] The JaIl keeps records of the numbers of hours of overtIme pmd for correctIOnal and custodIal overtIme and the reasons that the overtIme was needed In July 2001, the month m whIch thIS grIevance was filed, the JaIl pmd for 6386 hours of overtIme Of those hours, 2128 were saId to relate to addItIonal posts, 1098 to vacanCIes, 558 to hospItal and other escorts and 271 to trammg Illness, holIday lIeu tIme, vacatIOn, accommodatIOn, WSIB, secondments, temporary assIgnments, matermty leave and other forms of leave accounted for all but 98 hours of the balance The total overtIme hours worked m each of the prevIOUS SIX months (January through June 2001) ranged between 5947 and 6529 hours [57] The followmg annual figures show the trends m pertment categorIes of overtIme use Hours referable to Total overtIme adchtlOnal hospItal and FIscal vear hours posts vacanCIes other escorts Apr 1999- 50946 9018 2724 18 505 Mar 2000 Apr 2000 - 71 045 16977 10554 9926 Mar 2001 Apr 2001- 72,718 25 730 12,183 6592 Mar 2002 Apr 2002 - 81 493 29 188 23 050 6,355 Mar 200:3 Apr 2008 - 80 049 11 986 7811 13,267 Mar 2004 [58] There was a substantIal change m the overtIme pIcture m 2003 In and after August 2003, there were almost no hours of overtIme attributable to addItIonal posts Inmate overcrowdmg had been elImmated by then, as a result of the Adult Male Remand PopulatIOn ProJect announced m mId May 2003 That proJect mvolved the reallocatIOn of mmates among Toronto mstItutIOns and from Toronto mstItutIOns to Maplehurst and from Maplehurst to other more dIstant mstItutIOns Although the eVIdence before me does not reveal how It came about, the overtIme data also shows 25 that the hours of overtIme attributed to vacanCIes fell below 200 per month m and after December 2003 [59] DespIte the elImmatIOn of overcrowdmg and vacanCIes as causes for overtIme, the monthly overtIme figures contmued to range between 5448 and 7260 hours per month m the penod from August 2003 to Apnl 2004 As Ms GulbmskI testIfied, It appears from the data that thIS was largely the result of mcreased use of correctIOnal officer overtIme for escort work. EarlIer, when more correctIOnal officer overtIme had been needed m the mstItutIOn, most escort work had been performed by off-duty Toronto polIce officers When the need for officers to cover addItIonal posts and vacanCIes on overtIme decreased, more escort work was offered on overtIme and accepted on a voluntary basIs by correctIOnal officers at the Toronto JaIl As employer counsel noted, there was no supposed adverse consequence to others If officers declmed thIS work, yet It was accepted m almost the same volume as overtIme work wIthm the mstItutIOn had been accepted earlIer - Illustratmg, m hIS submIssIOn, that the earlIer work was truly voluntary The Issue of AIr Quahty and LIghting [60] The employee wItnesses, partIcularly Mr CrOlsIer, commented on the absence of outsIde lIght wIthm the mstItutIOn. That charactenstIc of the mstItutIOn contributes to ItS dreary mtenor appearance, but despIte the bald assertIOns of the umon and Dr Lewchuk m thIS regard there IS no actual eVIdence before me that the bUIldmg's lIghtmg creates a nsk to health or safety [61] The bUIldmg's HV AC system was retrofitted m the penod 1996 98 The bUIldmg went "smoke free" m 2000/2001 All wItnesses WIth whom that change was raIsed conceded that aIr qualIty seemed better thereafter Mr CrOlsIer testIfied about seemg dust m the vents, and that there were complamts about vanatIOns m temperature Officer #10 claImed to have seen both dust and mold m the vents, but It IS not clear when or where The consultant's report referred to earlIer at paragraph [38] contams the only quantItatIve assessment of aIr qualIty Issues m the eVIdence before me [62] Maunce Anderson has been the mstItutIOn's mamtenance coordmator smce September of 2002, and m that capacIty has access to mamtenance records for earlIer penods Those records show that mamtenance was regularly performed, mcludmg 26 replacement of vent filters and pressure testmg He noted that there are complamts about temperature from tIme to tIme, but he has had the expenence of havmg one staff member saymg that a partIcular area IS too hot when another complams that the same area at the same tIme IS too cold The Lewchuk Study [63] Professor Lewchuk's formal post secondary educatIOn was m economICS HIS graduate work was m economIC hIstory In the course of that work he became mterested m the evolutIOn of work orgamzatIOn m the auto mdustry HIS doctoral thesIs focused on the mtroductIOn of the Ford assembly lme mto the BntIsh auto mdustry Smce then he has contmued to study work orgamzatIOn Issues m the auto mdustry and other workplaces ThIs work brought hIm mto contact wIth medIcal researchers Peter Schnall and Paul LandsbergIs, who were studymg the Impact of psycho SOCIal aspects of work orgamzatIon on wor kers' heal th outcomes and partIcularly the mCIdence of cardIOvascular dIsease They formed a research team to explore lmks between work orgamzatIOn and health outcomes m Ontano auto plants Dr Lewchuk has also collaborated wIth researchers at York UmversIty studymg the lmk between work orgamzatIOn and health outcomes of those engaged m part-tIme, temporary and self- employed contract work. He describes hIS specIalty as drawmg out from workers theIr expenence of the work process [64] The nature of the study undertaken by Dr Lewchuk m thIS matter IS described m the IntroductIOn to hIS Apnl2003 report ThIs assessment was prepared for the Ontano Pubhc ServIce Employees Umon. It exammes the conchtIOns of work at the Don JaIl. I was asked by the Umon to assess whether under-staffing and the resultmg levels of overtIme represented a health nsk and to offer recommendatIOns If any ansmg out of my assessment. The assessment provIdes eVIdence m support of the umon s claIm that long hours of work represent a potentIal health nsk to the staff of the Don JaIl. The assessment IS based on . A reVIew of the key hterature on long hours of work and health and the hterature on work orgamzatIOn and health. . Documents provIded by management on staff shortages and the prevalence of overtIme worked at JaIl durmg 2001 & 2002 . Eleven mtervIews WIth correctIOnal officers at the Don JaIl conducted by the author durmg February of 2008 The sample was constructed to represent the three mam areas of the JaIl. the ranges admIssIOns & chscharges and medIcal. It also represented officers workmg dIfferent levels of overtIme Four 27 of the eleven worked fewer than 12 hours of overtIme each week. The remamder worked 12 or more hours . Two mtervIews wIth the local umon presIdent and a phone mtervIew wIth the person responsIble for schedulmg at the JaIl. . A short survey chstnbuted to all permanent correctIOns officers wIth theIr Februarv pay cheques The survey mcluded the 14 questIOn Karasek Job Content QuestIOnnaIre (JCQ) and the 17 questIOns that make up the effort reward Imbalance scale developed bv SIegnst (See appenchx one) Nmetv surveys were chstnbuted and 52 were returned for a response rate of 58%. The eleven mtervIewees were selected for Dr Lewchuk by the umon. The survey referred to m the last bullet pomt also contamed questIOns about current health status Karasek and SIegrIst are the prmcIpal authors of studIes concermng the measurement of psychoSOCIal Job characterIstIcs and assessment of (among other thmgs) the relatIOnshIp between chromc workplace stressors and adverse health outcomes such as heart dIsease [65] In a sectIOn of hIS report entItled "Long Hours and Health", Dr Lewchuk stated that Long hours may affect health outcomes m two chfferent ways Long hours or work may Itself be stressful. leadmg to maladaptIve behaVIOrs such as smokmg over- eatmg lack of exerCIse and drug use Workmg long hours may also extend the duratIOn of exposure to other work related health nsks mcludmg ergonomIc nsks chemIcal toxms work related fatIgue Job stram effort reward Imbalance and other stressor [SIc] resultmg from the orgamzatIOn of work. He cIted a study that found a relatIOnshIp between hours of work and reductIOn m subJectIve qualIty of lIfe, mcreases m weIght, body mass mdex and WaIst cIrcumference, mcreases m smokmg, alcohol consumptIOn and depressIOn. He also cIted a study that found that overtIme mcreased blood pressure and heart rate, and studIes that found a relatIOnshIp between hours worked and mCIdence of acute myocardIal mfarctIOn. He noted that one study found that long hours had no effect on blood pressure [66] In a sectIOn called "Work OrgamzatIOn and Health Outcomes", Dr Lewchuk described the concepts of "Job stram" and "effort reward Imbalance" as havmg arIsen out of attempts to explam observed dIfferences m the rates of death and Illness of people m dIfferent Jobs when those dIfferences m rates of death and Illness cannot be explamed by dIfferences m the degrees of rIsk arIsmg from dangerous substances or bIOmechamcal hazards 28 Karasek and Theorell developed what IS known as the Job Demand Control (JD-C) model. They pomted to Job stram defined as the combmatIOn of hIgh psychologIcal workload demands and low decIsIOn latItude or control as a key health rIsk. PsychologIcal demands are measured by questIOns askmg Is work excessIVe? Are there conflIctmg demands? Is there tIme for work? Is It too fast or too hard? DeCISIOn latItude IS measured by questIOns askmg Can employees make theIr own deCISIOns? Can they choose how to do theIr Job? Do they have a say on the Job? Do they take part m deCISIOns? Researchers usmg the JD-C model have shown that a varIety of health problems mcludmg hIgh blood pressure and carchovascular chsease are more common where employees are exposed to Job stram For mstance heart chsease IS more common amongst overworked cashIers and Ime workers than amongst overworked executIves SIegrIst argues that an Imbalance between costs and gams at work (1.e hIgh effort/low reward conchtIOn) results m a state of emotIOnal chstress WIth specwl propensIty to autonomIC arousal and assocIated stram reactIOns The ERI model does not abandon the earher focus on control at work or workload. Rather It places control and workload m the context of a broader and deeper set of SOCIa 1 forces and It mtroduces rewards as a key factor determmmg levels of stress In the ERI model, effort at work IS vIewed as part of a SOCIally orgamzed exchange WIth workers receIVmg rewards from SOCIety Those rewards mclude money esteem and status control. When effort and rewards are Imbalanced, the mchvIdualIs stressed and m the long-run IS more hkely to experIence negatIve health outcomes In the orIgmal study usmg thIs model. SIegrIst (1996) showed that the rIsk of acute myocarchal mfarctIOn sudden cardIaC death. and coronary heart chsease was most elevated m those WIth at least one mchcator of hIgh effort and at least one mchcator of low reward~) 34) More recently the WhItehall II study has uncovered a sIgmficant relatIOnshIp between effort reward Imbalance and mcreased rIsk of alcohol dependence psychIatrIC dIsorder long spells of SIckness absence and poor health functIOnmg. [67] Followmg hIS lIterature survey, Dr Lewchuk's report prOVIded a deSCrIptIOn of the workplace and of the Issues that emerged from hIS mtervIews of correctIOnal officers, Illustrated by quotes from the mtervIews As I noted earlIer, the umon agreed that the quotes were not eVIdence of the truth of theIr contents m respect of any matters m dIspute [68] Dr Lewchuk prepared and admmIstered a survey that described m hIS report as follows The survey mcluded the 14 questIOns from the JCQ questIOnmre used by Karasek to calculate Job stram. It mcluded 17 questIOns used by SIegrIst to calculate effort reward Imbalance A number of health questIOns were added mcludmg the self rated health questIOn used m the NatIOnal PopulatIOn Health Survey and questIOns on hypertensIOn, exhaustIOn pam and sleep problems 29 [69] The survey document Itself began wIth thIS explanatIOn ThIS survey IS bemg done by researchers at McMaster UmversIty at the request of your umon OPSEU We are lookmg at workmg conchtIOns and health at the Don JaIl. All responses WIll be treated confidentIally Surveys WIll be coded and analyzed at McMaster Reports WIll be based on summary data. not mchvIdual data. If you choose to complete thIS survey you are consentmg to the use of your responses many reports PartIcIpatIOn IS voluntary PartIcIpants were asked to WrIte m theIr Job tItle, age, sex and number of years worked at the JaIl They were not asked about the number of hours they had worked. In a sectIOn entItled "Workload and control", partIcIpants were asked whether they "strongly agree", "agree", "dIsagree" or "strongly dIsagree" WIth each of the followmg questIOns 1 My Job reqUIres that I learn new thmgs 2. My Job mvolves a lot of repetItIve work. '3 My Job reqUIres me to be creatIve 4. My Job allows me to make a lot of deCISIOns on my own. 5 My Job reqUIres a hIgh level of skIll. G On my Job I have very httle freedom to decIde how I do my work. 7 I get to do a vanety of dIfferent thmgs on my Job 8 I have a lot of say about what happens on my Job 9 I have an opportumty to develop my own specwl abIhtIes 10 My Job reqUIres workmg very fast. 11 My Job reqUIres workmg very hard. 12. I am not asked to do an exceSSIVe amount of work. 1'3 I have enough tIme to get the Job done 14. I am free from conflIctmg demands others make The next sectIOn of the survey, entItled "Effort and Rewards," contamed two sets of questIOns WIth whIch the partIcIpant was asked to agree or dIsagree When they answered "dIsagree" m answer to any of the first seven questIOns or "agree" m answer to any of the last ten, they were also asked mdIcate whether they were "not at all dIstressed", "somewhat dIstressed", "dIstressed" or "very dIstressed" by the SItuatIOn 1 I receIVe the respect I deserve from my supenors 2. I receIVe the respect I deserve from my colleagues '3 I expenence adequate support m dIfficult SItuatIOns 4. My current occupatIOnal pOSItIon adequately reflects my educatIon and trammg 5 ConsIdermg all my efforts and achIevements I receIVe the respect and prestIge I deserve at work. 30 G Comndermg all my efforts and achIevements my work prospects are adequate 7 Consldermg all my efforts and achIevements my salary/income IS adequate 1 I have constant tIme pressure due to a heavy work load. 2. I have many mterruptIOns and chsturbances m my Job '3 I have a lot of responslblhty m my Job 4. I am often pressured to work overtIme 5 My Job IS physIcally demandmg G Over the past few years my Job has become more and more demanchng. 7 I am treated faIrly at work. 8 I have expenenced or I expect to expenence an undesIrable change m my work sItuatIOn. 9 My Job promotIOn prospects are poor 10 My Job secunty IS poor The answers to these questIOns were used to calculate JCQ control and workload figures and ERI ratIO m accordance wIth formulas apparently deVIsed by the ongmal authors of the survey questIOns [70] Dr Lewchuk's report saId thIS about the survey and ItS results Job stram denved from the Karasek Job Demand Control model was mtroduced m SectIOn One Job stram IS used extensIVely to predIct the health effects of work orgamzatIOn. The core prechctIOn IS that as control falls and workload mcreases health nsks mcrease Responses to a senes of questIOns are used to calculate a workload mdex and a control mdex. These are then used to chvlde the sample mto four quadrants A hIgh stram quadrant where workload IS above average and control below average an actIve quadrant where both workload and control are above average a low stram quadrant where control IS above average and workload below average and a paSSIVe quadrant where both workload and control are below average Followmg a number of other studIes we use the mechan values from the Cornell HypertensIOn study as our cut pomts for above and below average scores on the two mchces The hIghest health nsks are prechcted m the High Stram quadrant where control IS low and workload IS hIgh. There IS some debate about whIch quadrant has the least nsks Those m the ActIve quadrant benefit from a posItIve work expenence and actIve learmng whIle those m the 'Low Stram quadrant enJoy a relaxed work enVIronment. Both enJoy below average health nsks Those m the PassIVe quadrant suffer from a gradual atrophymg of learned skIlls and ablhtIes and a lack of motIvatIOn. Health nsks are hkely to be average FIgure Two presents results from the survey responses at the Don JaIl for correctIOnal officers and compares them wIth Job stram measures from a number of other work sItes mcludmg a large pubhc sector office settmg and a large manufacturmg settmg. CorrectIOnal officers (C02) were located m the hIgh stram quadrant of the figure They enjoyed about the same level of control as pubhc sector workers m an office settmg less than skIlled trades and techmcal, office and professIOnal workers m a manufacturmg settmg and more than assemblers m a 31 manufacturmg settmg. TheIr workload was hIgher than all of the Job classIficatIOns m the manufacturmg settmg and less than publIc sector office workers These results suggest that correctIOnal officers are exposed to Job stram wIth the assocIated mcreased nsk of va no us stress related Illnesses [71] The Lewchuk report arnved the followmg conclusIOns and recommendatIOns Havmg exammed the mtervlews analyzed the survey data and agam revIewed the lIterature mcluchng my own studIes m the field, I have concluded the followmg . CorrectIOnal officers report below average health status and hIgh levels of hypertensIOn and sleep chsorders . The average correctIOnal officer IS workmg over GO hours a week. \Vork weeks of 80 hours per week and more are common. . There IS a hIgh probabIlIty that the relIance on overtIme at thIs workplace IS affectmg the health of correctIOnal officers . Long hours of work are affectmg the health of those who work long hours as well as those who contmue to work normal hours . The physIcal conchtIOns of the Job aIr qualIty and lIghtmg are not conducIVe good health. . The orgamzatIOn of work has led to both Job stram and effort reward Imbalance . The culture at thIs workplace IS such that It cannot be left to the staff to refuse workmg long hours ThIs wIll only be done by the employer mcreasmg staff that all posts m the JaIl can be filled wIthout recourse to overtIme Accordmgly I recommend that the employer . Increase staffing levels so that the Don JaIl IS m complIance wIth the Ontano Employment Standards Act. . In partIcular the employer should mcrease staffing levels to be m complIance wIth sectIOns 18(1) 18(3) and 18(4) of the act as follows . 18(1) An employee must have at least 11 consecutIve hours free from performmg work m each day . 18(3) An employee must also have at least eIght consecutIve hours free from performmg work m between shIfts . 18(4) An employee must also receIVe at least 24 consecutIve hours off work m each work week. or 48 consecutIve hours off work m every two consecutIve work weeks . As staffing levels mcrease Job stram wIll fall and fewer staff wIll face effort reward Imbalance To speed thIs process the employer should create a Jom labour management commIttee to evaluate managenal practIces at the JaIl wIth the obJectIve of ensurmg that eXlstmg standard orders are followed and that steps are taken to ensure staff are supported m theIr relatIOns wIth mmates . Steps should be taken to Improve aIr lIghtmg and nOIse levels at the JaIl. SpecIal emphasIs should be gIVen to lImltmg mmates dIrect access to correctIOns officers 32 Dr Gnam's CrItique of the Lewchuk Report [72] As noted earher m paragraph [10], Dr WIlham Gnam IS a psychIatnst and chmcal epIdemIOlogIst. The employer engaged Dr Gnam to evaluate Dr Lewchuk's report Dr Gnam provIded a wntten evaluatIOn, whIch he explamed m hIS testImony He agreed that The Karasek model, the effort reward Imbalance model, and theIr respectIve measures (the JCQ and the ERI questIOnnaIre) represent establIshed and valIdated models III re,'-;earch '-;ettlllf.?" for measurmg charactenstIcs of work orgamzatIOn whIch are nsk factors for (assocIated wIth) a vanety of adverse health outcomes (emphasIs added) He noted, however, that the aSSOCIatIOn most clearly estabhshed m the hterature was between the control dImensIOn of the JCQ and nsk of cardIOvascular dIsease, fewer than 40% of studIes had found aSSOCIatIOn between cardIOvascular dIsease and the Job demand dImensIOn, and aSSOCIatIOns between JCQ and other health nsks were also less clearly demonstrated He noted that the ERI had been employed m fewer studIes, and that the WhItehall II study had found that the mcreased nsks assocIated wIth ERI were relatIvely small. He felt It was also Important to note that Job stram was only one of several factors known to mfluence the nsk of cardIOvascular dIsease [73] As for long hours of work, Dr Gnam's opmIOn was that "Dr Lewchuk's report overstates the strength of the sCIentIfic eVIdence demonstratmg an aSSOCIatIOn (or causal relatIOnshIp) between long work hours and adverse health outcomes" Dr Gnam noted that the eXlstmg studIes m thIS area suffered from methodologIcal hmltatIOns of one sort or another that affected the rehablhty of theIr results, and that apart from methodologIcal hmltatIOns, the pubhshed eVIdence m thIS area does not consIstently demonstrate a relatIOnshIp between long work hours and adverse health outcomes, as Dr Lewchuk's report acknowledged. He had thIS to say about Dr Lewchuk's attempt to lmk long hours of work and work orgamzatIOn Dr Lewchuk concludes 'TheIr work alerts us to the need to consIder both hours of work and the context under whIch those hours are worked to understand work related health. WhIle thIs statement appears to Imply that (long) work hours and work orgamzatIOn may be related m some manner the report does not develop thIs argument further Dr Lewchuk does not for mstance assert that long work hours may have greater adverse health effects If they occur m the context of Job stram or ERr. The report provIdes no eVIdence that meanmgfully aSSOCIates work hours wIth work orgamzatIOn measures for example no data are presented whIch establIsh that workers who reported Job stram or ERI tended to have longer work hours To my 33 knowledge there are no publIshed studIes whIch measure work hours m conJunctIOn wIth Job stram and/or ERI and demonstrate a relatIOnshIp between these factors and health outcomes ThIs cntIque of eXlstmg studIes does not Imply that there IS no eVIdence relatmg long work hours to III health. What It does establIsh IS that the strength of eVIdence relatmg long work hours to ill health IS much weaker than that relatmg work orgamzatIOn to adverse health outcomes In adchtIOn the mtenslty and duratIOn of long work hours necessary to cause III health has not been establIshed sCIentIfically WhIle not acceptmg Dr Lewchuk's VIew of the matter, Dr Gnam dId state m hIS report and m hIS testImony that It IS also my opmIOn (based predommantly on clImcal Judgment and expenence) that extreme work hours (defined as workmg 80 hours or more per week on a consIstent basIs over several months) would lIkely result m decreases m health status such as reduced sleep hours and daytIme somnolence However these health status changes would be reversIble upon the resumptIOn of normal (or near-normal) work hours [74] Dr Gnam was cntIcal of the methodology by whIch Dr Lewchuk came to hIS concluSIOns, partIcularly the conclusIOn that health problems reported by correctIOnal officers at the Toronto JaIl were the result of theIr workmg there The most Important flaw m Dr Lewchuk s methods IS that he only consIders occupatIOnal exposures as a potentIal determmant of correctIOnal officers health. ThIs represents a form of reductIOmsm that almost no clImcIan or health researcher would accept Health status IS determmed by numerous factors mcludmg genetIc endowment pennatal and chIldhood exposures lIfestyle habIts SOCIal networks famIly neIghborhood and commumty factors and health servIce utIlIzatIOn. OccupatIOnal exposures represent only one category of many health determmants In order to demonstrate that health problems suffered by correctIOnal officers are caused by or matenally related to workplace exposures Dr Lewchuk would have to explIcItly consIder and control for the effects of other health determmants In hIs report however there IS no effort to do so The most relevant questIOn for Dr Lewchuk to address related to the correctIOnal officers health status IS the followmg what was the health status of correctIOnal officers at the Don JaIl who had certam occupatIOnal exposures (long work hours and alleged ERI and Job stram) compared to the health status the officers would have had wIthout such exposures? However m order to Isolate the (causal) effect of occupatIOnal exposures It would clearly have been necessary to IdentIfy and control for other determmants of health. There are many feasIble methods by whIch an mvestIgator can attempt to control for multIple health determmants whIle Isolatmg and measurmg the effect of the exposure (m thIs case the occupatIOnal exposure) of mterest. Almost all such methods use a control or companson group For example m studymg the relatIOnshIp between occupatIOnal exposures and health status Dr Lewchuk could have compared the health status of correctIOnal officers at Don JaIl to a comparable group of correctIOnal officers at another work sIte Dr Gnam also noted that 34 persons may have nsks for adverse health outcomes but never expenence such outcomes For Dr Lewchuk s study the dIrect ImplIcatIOn IS that m order to demonstrate that adverse health outcomes related to Job stram and ERI occurred, It IS not sufficIent to show that Job stram and ERI prevaIled among correctIOnal officers [75] As I noted earher, at the very end of the hearmg the umon abandoned the claIm that health problems actually expenenced by correctIOnal officers at the Toronto Jml had resulted from theIr workmg there I wIll say no more about Dr Gnam's cntIclsms of Dr Lewchuk's methodology and conclusIOns m that regard, except when they also bear on the umon's remammg claIm that correctIOnal officers at the Toronto Jml were exposed to health nsks I wIll say, however, that the eXIstence of the deficIencIes that Dr Gnam IdentIfied m hIS analysIs of the Lewchuk report's support for the now abandoned claIm casts doubt on the ngorousness of the approach Dr Lewchuk took m arnvmg at all of the conclusIOns m hIS report [76] Dr Gnam's observatIOns about reportmg bIas and selectIOn bIas are of partIcular Importance m assessmg Dr Lewchuk's conclusIOn that the survey results showed that the correctIOnal officer populatIOn at the Toronto JaIl were exposed to Job stram and effort reward Imbalance PotentIal reportmg bIas Another Important lImItatIOn m the method used by Dr Lewchuk IS that both the JCQ and the ERI questIOnnaIreS were employed m a settmg that dIffered from typIcal research settmgs m Important respects A key feature of many health research studIes (and partIcularly of those mvolvmg subJectIve self report measures such as the JCQ and ERI) IS that study partIcIpants are belIeved to provIde answers whIch are unbIased and accurate based upon the premIse that theIr responses are confidentIal and wIll not have matenal effects on theIr lIves In other words m most formal research studIes there IS an absence of mcentIves whIch mIght bIas the answers provIded by respondents In my opmIOn there are no grounds to assume that the CIrcumstances at the Don JaIl durmg the tIme that Dr Lewchuk was admmlstermg the JCQ and ERI resembled those of a formal research study m thIs respect. Umon members may have felt that they had an mterest m the outcome of the study whIch may have bIased some or all of theIr answers ThIs represents a senous problem when a measurement tool developed for research settmgs IS applIed outsIde of that context. WhIle Dr Lewchuk does not provIde any descnptIOn of the knowledge that Umon members mIght have had about the potentIal uses or Importance of the survey It IS reasonable to assume that at least some Umon members were aware that It was m theIr mterest to report adverse health low Job control, hIgh stram, and ERr. The potentIal for reportmg bIas IS taken senously m many areas of health measurement For example some health measurement scales have explIcIt components whIch are mtended to detect and measure bIased reportmg. The Minnesota MultIphasIc PersonalIty Inventory (MM pI) a self admmlstered measure of personalIty and psychIatnc symptoms mcorporates valIchty scales that are mtended to detect over and under-reportmg of symptoms The JCQ and ERI were not 35 developed to be employed outsIde of research settmgs and have no valIchty components The low survey response rate Another threat to the accuracy and valIchty of Dr Lewchuk s findmgs IS the low survey response rate of 58%. (Out of 90 questIOnnaIreS whIch Dr Lewchuk chstnbuted, apparently only 52 were completed and returned,) The low response rate would not be a problem If the 58% that chd respond were representatIve of the entIre populatIOn of correctIOnal officers However there IS no reason to belIeve that thIs was the case Response rates thIs low raIse senous concerns that the results reported are not truly representatIve of the entIre populatIOn of correctIOnal officers When survey respondents dIffer from the non respondents In ways that affect the phenomena measured, selectIOn bIas occurs whIch m turn bIases the results For example one reasonable hypothesIs IS that correctIOnal officers wIth worse health status (or hIgher perceIVed personal gam from partIclpatmg m the study and reportmg hIgh degrees of adverse workmg conchtIOns or poor health status) preferentIally responded to the survey leadmg to an over-representatIOn of officers wIth worse health status SelectIOn bIas can senously dIstort the statIstIcs reported, and the conclusIOns drawn related to the entIre populatIOn of correctIOnal officers There are methods by whIch Dr Lewchuk could have provIded mSlght mto the lIkelIhood that selectIOn bIas had occurred. For example the report could have conducted statIstIcal tests comparmg respondents and non respondents on certam charactenstIcs that were known or observed for both groups (such as age and possIbly work hours) from other data sources Upon thIs Issue however Dr Lewchuk s report IS sIlent. Umon counsel challenged Dr Gram's testImony that the response rate was a concern by confrontmg hIm wIth a volume of studIes saId to reflect or support Dr Lewchuk's VIew that drawmg conclusIOns about a populatIOn based on the responses of 58 percent of that populatIOn was an accepted sCIentIfic approach. After spendmg only a few mmutes revlewmg those studIes, Dr Gram was able to demonstrate convmcmgly that they dId not support Dr Lewchuk's VIew [77] Dr Gnam also commented on Dr Lewchuk's conclusIOns about the voluntarmess of the overtIme performed at the JaIl SectIOn '3 of Dr Lewchuk s report provIdes mformatIOn based upon narratIves from mtervlews wIth correctIOnal officers suggestmg that some correctIOnal officers felt compelled to work overtIme The narratIves suggest that correctIonal officers felt oblIgated to offer overtIme m order to reduce the nsk that coworkers would face adverse workmg conchtIOns (such as under-staffed shIfts) whIch could have resulted m mJury I agree wIth Dr Lewchuk s assertIOn that understandmg the psychology and motIvatIOns underlymg correctIOnal officers work hours IS complIcated. In thIs respect I find the chscussIOn wlthm the report to be mcomplete The report notes but does not consIder the fact that some correctIOnal officers eIther chd not work overtIme hours or worked fewer overtIme hours If workers felt compelled to work overtIme hours why chd not all officers do so? ThIS chscrepancy suggests that the explanatIOn of the motIvatIOns and pressures for long work hours IS mcomplete To more fully understand the motIves of the officers It would have been helpful to mtervlew and mclude the narratIves of correctIOnal officers who chd not work overtIme hours In a dcht IOn It IS possIble that the report understates the mcentIve effects of hIgher 36 overtIme wages (and mcreased mcomes) on the decIsIOns of officers to take overtIme hours [78] At the end of hIS evaluatIOn, Dr Gnam commented on each of the conclusIOns expressed m the Lewchuk report In so far as the conclusIOns on whIch he commented were concerned wIth the eXIstence of nsks to health as opposed to causes of eXlstmg health problems, Dr Gnam's comments were as follows The phv""lcal condltlon.... of the .Job mr qualltv and llf.?htlllf.? are not conduciVe to f.?ood health. ThIs assertIOn IS not supported by any systematIc eVIdence provIded m the report beyond opmIOns expressed m the narratIves No obJectIve measures of aIr and lIghtmg qualIty were mcluded. WhIle the absence of walls separatmg officers from pnsoners could represent a safety nsk, no eVIdence was presented to suggest that compared to other facIlItIes the rates of mJury to officers caused by pnsoners was hIgher The orga1l1Zatlon oI rvork ha.... led to both .Job ...'tralll and effort rervard 1mbalance. I find no eVIdence to suggest that the JCQ and the ERI were not correctly admmlstered and reported. However the low response rates the absence of mformatIOn on selectIOn bIas and the potentIal for respondent bIas (based upon the presence of mcentIves for reportmg m a certam manner) are senous weaknesses m the work orgamzatIOn data analyzed by Dr Lewchuk. A further lImItatIOn m the work orgamzatIOn data IS that the duratIOn of exposure to potentIal ERI and Job stram IS unknown, because the JCQ and ERI scales were admmlstered on only one occaSIOn. Based upon these weaknesses It IS my opmIOn that Dr Lewchuk has faIled to establIsh that correctIOnal officers worked under conchtIOns of ERI and Job stram. Even If one assumes that Dr Lewchuk s assertIOn IS correct the findmg would support an mcreased nsk of adverse health outcomes wIthout demonstratmg that m fact such outcomes had occurred. If workplace changes later led to a reductIOn m Job stram and effort reward Imbalance the aVaIlable emplncal eVIdence suggests that the mcreases m health nsks revert rapIdly to normal - certamly m no more than three years Argument [79] In hIS closmg argument, umon counsel acknowledged that ArtIcle 9 1 IS not a guarantee of health and safety but, rather, an obhgatIOn to make reasonable prOVISIOns for health and safety He observed that m cases allegmg breach of that obhgatIOn the Board has reqUIred that the umon obJectIvely demonstrate a nsk to the health of the employee that IS real and sIgmficant, and that the degree of nsk wIll be balanced agamst the employer's operatIonal obhgatIOns and reqUIrements In determmmg whether reasonable prOVISIOn has been made He noted that the umon does not have to show that actual harm, Illness or damage has been suffered It IS sufficIent for the umon to show a senous nsk, and the onus then shIfts to the employer to demonstrate that the nsk IS necessary Reference was made to the decIsIOns m Baron et a1., 2968/91 37 (Kaplan), Fernll et aI., 1665/90 (Kaplan), Taylor-Baptiste, 469/88 (Dlssanayake), Stewart et aI., 1916/93 (Kaplan), Wa tts/lVng, 1367/90 (Kaplan), UniOn Gnevance, 1190/89 (Stewart), Balll et aI., 1102/87 (Ratushny), Sl111, 256/88 (Watters), Ethier, 959/87 (Wnght) and WIlson, 2855/91 (Gray) [80] Umon counsel described Dr Lewchuk's analysIs as bemg that If a workplace exhibIts Job stram, effort/reward Imbalance, lack of control and hIgh Job demand mcludmg hIgh overtIme, then negatIve health outcomes would follow He submItted that Dr Gnam had agreed wIth thIS m hIS report, and that Dr Gnam's only challenge was to the methodology of the survey and whether the case was proven. [81] Umon counsel submItted that the Toronto JaIl IS a notorIOusly bad place to work or be mcarcerated, and that the eVIdence connects the condItIons there wIth serIOUS nsks to the health of employees He asserted that Judges and others had commented on the mappropnateness of Imposmg those condItIons on mmates He argued that the overcrowdmg at the Toronto JaIl was a result of gross neghgence of the Government of OntarIO m permlttmg the overcrowdmg to occur RIght from the begmnmg there had been a maJor mIscalculatIOn by the government m the desIgn of the Infrastructure Renewal ProJect, he saId, a mIscalculatIOn wIth whIch the umon had taken Issue early on. He noted that there had been no eVIdence from the employer of any steps taken to deal wIth thIS mIscalculatIOn untIl recently, and that ItS approach had sImply been to contmue wIth the 1996 plan untIl ItS completIOn eventually eased the sItuatIOn. He observed that the need for overtIme at the Toronto JaIl was not the result of an emergency, It was an ongomg sItuatIOn to whIch the employer had chosen not to respond by ensurmg that adequate numbers of staff were avaIlable He submItted that the motIves of the staff for workmg overtIme were Irrelevant to the questIOn I have to decIde The exceSSIve overtIme had created health nsks, he submItted, and was contrary to the standard set m the El11ploYl11ent Standards Act whIch, although not legally apphcable to thIS workplace, nevertheless reflected a standard whIch he suggested was based on health and safety consIderatIOns [82] As for the concern about aIr quahty, umon counsel argued that the concerns expressed by employees In theIr mtervlews wIth Dr Lewchuk had not been contradIcted, and there was no eVIdence that anythmg was done about aIr quahty 38 concerns pnor to the summer of 2001 when the gnevance was filed. He acknowledged that the subJectIve concerns expressed by the employees and by the umon concermng aIr quahty was not eVIdence that there was a problem, but submItted that It was nevertheless "supportmg eVIdence" that there was a problem, and that m the absence of eVIdence to the contrary I could therefore accept that there were problems of aIr quahty [83] Employer counsel noted that the umon had based Its case on allegatIOns that there IS effort/reward Imbalance and Job stram m the workplace and people workmg long hours and that these condItIons caused health problems or nsks of health problems He submItted that the umon was obhged not only to prove that these condItIons eXIsted and that they created a sIgmficant nsk but also that there was a reasonable precautIOn that was not taken wIth respect to that nsk. He argued that none of those thmgs had been proven. He noted that Dr Lewchuk could not IdentIfy what It was that caused the Job stram and effort reward Imbalance that hIS survey purported to demonstrate Indeed, Dr Lewchuk had acknowledged that he could not say that long hours of work mcreased effort reward Imbalance, and that It could have had the OpposIte effect Accordmgly, the umon had not demonstrated any sIgmficant nsk that any reasonable measure could have substantIally reduced [84] As for the proposItIOn that the workmg of long hours alone created a nsk to health, employer counsel mVlted me to accept Dr Gnam's opmIOn that the current hterature an msufficlent basIs for such a conclusIOn. He submItted that the prOVISIOns of the El11ploYl11ent Standards Act to whIch umon counsel referred m argument estabhsh quahty of hfe standards, not health and safety standards He observed that the OccupatiOnal Health and Safety Act addresses condItIons, hke hazardous substances, that create health nsks for those exposed to them, and that that Act does not set a standard for maXImum hours of work. [85] Employer counsel submItted that the collectIve agreement makes express prOVISIOn for the workmg of overtIme and sets the negotIated compensatIOn to be paId to those who work overtIme The local protocol negotIated between the employer and the umon determmes the allocatIOn of overtIme A cap on the amount of overtIme allocated to anyone employee was a matter for negotIatIOn, he submItted, and the 39 absence of such a hmlt m overtIme protocol amounted to agreement that long hours were not a vIOlatIOn of the health and safety prOVISIOns of the collectIve agreement He submItted that the eVIdence shows that the workmg of overtIme was voluntary In that regard there was the eVIdence that classIfied officers as a group worked more overtIme (as a percentage of regular hours) that unclassIfied officers, somethmg one would not have expected to result from the operatIOn of the overtIme protocol If the classIfied officers dId not want to work overtIme There was also the eVIdence that after the overcrowdmg Issue had been dealt wIth, the level of overtIme worked remamed hIgh as officers took over the hospItal escort work that would otherwIse have been contracted out to pohce officers [86] Employer counsel submItted that If correctIOnal officers had been fallmg asleep on duty, there was no eVIdence that thIS had ever been brought to the attentIOn of operatIOnal managers by any adversely affected employee or that management had otherwIse been aware of It He argued that the umon cannot rely on ItS own or ItS members' faIlures to brmg such matters to the attentIOn of management m support of a claIm that the employer had breached artIcle 9 1 He cIted the decIsIOn m Ulllon Gnevance, 1929/91 (Barrett), where the Board stated that correctIOnal officers have a duty to report a faIlure by another officer to properly provIde backup, and observed (at p 10) that ArtIcle 18 1 of the collectIve agreement reqUIres the employer and the umon to co operate to the fullest extent possIble m the preventIOn of accIdents and m the reasonable promotIOn of safety and health of all employees Unreported vIOlatIOns of standmg orders would appear to contravene the umon s oblIgatIOn m thIs regard In saymg thIs we make the assumptIOn that If these occasIOnal vIOlatIOns of standmg orders had been reported to management management would have taken steps to ensure there would be no recurrence [87] As regards aIr quahty, employer counsel noted that aIr quahty had Improved as a result of the no smokmg pohcy mtroduced m 2000, that there were no outstandmg orders, and that deficIencIes were fixed as they were IdentIfied Analysis [88] When thIS gnevance was filed the Toronto JaIl's needs for correctIOnal officers' work were well m excess of the regular hours of work aVaIlable from correctIOnal 40 officers then on staff. There were at least three maJor reasons for thIS One was that the mstItutIOn was chromcally overcrowded It had more mmates than It was mtended to accommodate That created a need for addItIonal correctIOnal officer posts on the ranges, posts that were not provIded for m the regular, budgeted complement Another maJor reason for the need for overtIme was that the JaIl was understaffed, a term used m thIS proceedmg to describe the fact that there were vacanCIes m the "post audIt" complement of permanent posItIOns for whIch the mstItutIOn was budgeted. A thIrd reason for the need for overtIme was that needs that could and dId anse regularly, hke hospItal escort duty and trammg tIme for example, were also not covered by the post audIt complement Even If there had been a full complement of correctIOnal officers (eIther classIfied mcumbents or unclassIfied officers backfillmg absent mcumbents) and no addItIonal need ansmg from overcrowdmg, when these other unbudgeted needs arose they could only have been met by temporanly removmg officers from budgeted posts, when that was possible, or by havmg the work performed on overtIme [89] The excess work was offered as overtIme opportumtIes to eXlstmg staff m accordance wIth the local overtIme protocol. There was a lot of overtIme work. As a result, a lot of the staff worked a lot of overtIme for premIUm pay Nearly all of thIS was "voluntary," m the sense that officers were seldom actually ordered to work overtIme The work was not evenly dIstributed among the correctIOnal officer populatIOn. Some classIfied officers regularly worked as many as 80 hours a week, and occasIOnally more, whIle other officers worked httle or no overtIme Whatever the dIstributIOn of work may have been, there IS a clear sense from the testImony of those who worked at the JaIl at that there were two dlstmct groups of officers those that worked a lot of overtIme and those worked httle or no overtIme [90] Dr Lewchuk's VIew was that thIS overtIme was not truly voluntary, that employees were under pressure to agree to work overtIme and that "[t]he culture at thIS workplace IS such that It cannot be left to the staff to refuse workmg long hours" As Dr Gnam observed, however, the fact that some officers worked no overtIme IS mconslstent WIth the notIOn that officers were compelled, m effect, to work overtIme All of the wItnesses, mcludmg Dr Lewchuk, acknowledged that the motIvatIOn of those who worked overtIme was complex, and that the addItIonal compensatIOn they receIved for workmg overtIme was hkely to be at least one of the reasons why employees chose to do 41 so The economIC benefit was clearly the pnme motIvator for the one employee wItness who had worked substantIal overtIme hours No employee testIfied that s/he had felt compelled to work overtIme [91] Those who worked substantIal overtIme tended to be tIred, cranky and Irntable at work. Those who dId not work much (or any) overtIme generally had to work wIth others who dId. The two wItnesses who dId not work overtIme testIfied that when they were partnered wIth officers who had been workmg overtIme, theIr partners tended to ask for the more sedentary tasks, leavmg them to do the "runmng around." They saId that these tIred partners tended to take overly long breaks, fell asleep whIle on break and even fell asleep whIle at theIr posts, and that the condItIon of theIr partners led them to be concerned about whether they would provIded proper back up All thIS IS uncontradIcted These officers clearly resented that they had to carry and cover for partners who mIght be earmng as much as two and a half tImes what they earned. It IS probably that they were not the only employees who had these expenences or felt as they dId about the sItuatIOn. [92] The CIrcumstances created by overcrowdmg and understaffing were bound to breed employee conflIct conflIct WIth other employees and conflIct WIth supervIsIOn. There was mcreased verbal aggressIOn and even some physIcal aggressIOn between officers, sparked by such concerns as the faIlure of an officer to respond to a code It IS not at all surpnsmg that the local umon felt these condItIons were not m the mterests of ItS membershIp, notwlthstandmg that they resulted m mcreased earnmgs for some members Nor IS It surpnsmg that the umon saw a return to full complement and ehmmatIOn of overcrowdmg as a means of advancmg the mterests of ItS membershIp by ehmmatmg or reducmg some of the causes of conflIct [93] On the uncontradIcted eVIdence of Mr Scanlon, the employer could have allevIated overcrowdmg at thIS JaIl m 2001 by keepmg some other mstItutIOns open longer than ongmally planned. Instead, the employer sImply stuck to a five year old plan that had been based on expectatIOns that expenence had smce proven to be wrong WhIle a MERC agreement reserved the JaIl's eleven acknowledged vacanCIes for possible transfers from (other) closmg mstItutIOns untIl the end of June 2001, the faIlure to fill the vacanCIes that remamed or arose thereafter was left entIrely 42 unexplamed m thIS proceedmg In the course of hIS argument, employer counsel asserted that the employer's problem had been that It could not get tramed officers There was no eVIdence of that, however There was no testImony to explam why the employer made the chOIces that led to and contmued the sustamed overcrowdmg and understaffing at the Toronto JaIl [94] The Issue before me IS not whether the local umon or ItS membershIp had a legItImate mterest m the filmg of vacanCIes and ehmmatIOn of overcrowdmg, however Nor IS It whether the employer's response to those Issues was unwIse from a labour relatIOns (or any other) perspectIve The Issue before me IS only whether the employer faIled to dIscharge ItS obhgatIOns under ArtIcle 9 1 and, If so, whether the remedy (whIch m other respects would first be a matter for resolutIOn by the partIes) should mclude compensatIOn for past exposure to the nsks to whIch the umon alleged that they had been exposed. Article 9 1 [95] Agam, ArtIcle 9 1 of the collectIve agreement provIdes that 9 1 The Employer shall contmue to make reasonable prOVISIOns for the safety and health of ItS employees durmg the hours of theIr employment It IS agreed that both the Employer and the Umon shall co operate to the fullest extent possIble m the preventIOn of accIdents and m the reasonable promotIOn of safety and health of all employees ThIs language has appeared m the partIes' collectIve agreement for a number of years, and ItS apphcatIOn to correctIOnal mstItutIOns and correctIOnal officers has been the subJect of numerous decIsIOns of thIS Board [96] It IS well settled that the obhgatIOn to make "reasonable provIsIOns" for the safety and health of employees does not reqUIre the ehmmatIOn of all possible nsks to health or safety Some nsks may be necessanly mherent m the work or the workplace In Ulllon Gnevance 69/84 (Samuels) the Board observed (at pp 6 8) that ArtIcle 18 1 speaks of reasonable prOVISIOns for the safety and health of the employees And thIs IS echoed m sectIOn 14(2)(g) of the OccupatIOnal Health and Safety Act whIch Imposes a duty on an employer to take every precautIOn reasonable m the CIrcumstances for the protectIOn of a worker There IS no oblIgatIOn to guarantee an employees safety agamst every possIble nsk. no matter how remote the possIbIlIty that It WIll occur The collectIve agreement and the legIslatIOn contemplate reasonable precautIOn It IS necessary to balance the safety of the employees agamst the need for care and custody of the mmates and the 43 purposes of the mstItutIOn. Proper plannmg can reduce the potentIal or lIkelIhood of mCldents but It IS not possIble to elImmate all conceIvable nsks [97] ArtIcle 9 1 reqUIres that the employer not expose a correctIOnal officer to "unnecessary," "unreasonable" or "excessIve" nsks Stockwell, 1764/87 (WIlson), at p 14, Watts/lVng, 1367/90 (Kaplan), at p 27, Stewart et aI., 1916/93, (Kaplan) at pp 25 26, Taylor-Baptiste, 469/88 (Dlssanayake), at p 20 In Balll et aI., 1102/87, (Ratushny), the gnevors alleged that the way m whIch theIr shIfts were scheduled had a detnmental effect on theIr health and therefore vIOlated what IS now ArtIcle 9 1 In that context, the Board observed (at p 9) that where there IS a factor or where there are factors whIch generate the antIcIpatIOn of nsk to the health and safety of employees the employer must act reasonably m all of the CIrcumstances to reduce such nsk. That clearly does not mean that all nsk must be elImmated. In the gnevances before us the eVIdence clearly establIshed that all shIft work almost mevltably 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 mcreases the nsk to health bv more than a marglllal degree, the Employer should be reqUIred to take steps to elImmate or neutralIze that factor provIded that It IS reasonable to do so (emphasIs added) On the eVIdence before It m that case, the Board found that the umon had not dIscharged the onus on It to estabhsh on a balance of probablhtIes that the work schedule m questIOn there had "mcreased the nsk to health by a sIgmficant degree" [98] In Fernll et aI., 1665/90 (Kaplan), the Board observed (at p 22) that the prOVISIOns of the collectIve agreement are among the matters to be weIghed m balancmg the mterests of employees and employer when determmmg whether work arrangements create unreasonable nsk. In that case the umon sought the ehmmatIOn of standby shIfts for ambulance officers, argumg that the combmatIOn of theIr regular hours of work wIth the standby shIfts that followed them had an adverse Impact on theIr sleep and thence on theIr health. The employer revIsed the work schedule, concedmg that a schedule that mIght reqUIre an officer to be eIther on duty or on standby for 32 consecutIve hours was mappropnate What remamed m Issue thereafter was the umon's challenge to the revIsed schedule, m whIch an officer would at tImes be at work for an eIght hour shIft followed by an eIght hour standby shIft durmg whIch s/he mIght also be reqUIred to work, followed by a duty free perIOd of at least eIght hours The umon's posItIOn was that an officer should not be reqUIred to work more 44 than twelve hours and should have a duty free perIOd of at least 12 hours between shIfts In that context the Board made the followmg observatIOns at pp 22 25 ObvIOusly the fact that no employees have been mJured or have submItted compensable claIms IS not determmatIve of thIs case It IS a factor that can be consIdered, but the absence of mJury IS not probatIve of anythmg other than that partIcular fact. The eVIdence m the mstant case IS uncontradIcted that the gnevors feel less alert whIle on standby duty and that the nsks of the Job mcrease at mght and on weekends Matenals from the CanadIan Centre for OccupatIOnal Health and Safety mchcate that mght tIme work can have negatIve effects on workers There IS really no questIOn about any of thIs for It IS a matter of common sense that an employee called out of bed m the mldclle of the mght to respond wlthm mmutes to a senous mechcal emergency wIll not be as alert and able to perform hIS or her dutIes as an employee workmg a regular shIft However the questIOn that must be asked IS whether thIs eVIdence sImply stated, IS sufficIent to mamtam the gnevances allegmg a health and safety vIOlatIOn and to support an order chrectmg thIs employer to elImmate these longstandmg standby shIfts Our answer to thIs questIOn IS both yes and no We find that the work schedules m effect at the tIme the gnevances were filed vIOlates [SIc] the health and safety prOVISIOns of the CollectIve Agreement The extended work penods of those schedules more than satIsfied the umon s burden of proof. No expert eVIdence was necessary to establIsh that a shIft of 32 hours raIsed the real possIbIlIty of occupatIOnal harm. Accordmgly the gnevance IS granted m part and we declare that the health and safety prOVISIOn was pnor to the hearmg of thIs matter mfrmged. That sItuatIOn, however changed on the first day of hearmg and the old schedule IS no longer m effect. It remams for us to determme whether or not the revIsed schedules constItute a vIOlatIOn of the CollectIve Agreement WhIle we find the gnevors eVIdence about fatIgue and levels of alertness crechble and relevant we do not find that the new schedule places the gnevors m a posItIon of nsk reqUIrmg elImmatIOn of standby dutIes GIVen the frequency and duratIOn of standby servIce as mchcated m the eVIdence and chscussed m thIs award, It cannot be saId, as It could be wIth respect to the 32 hour shIft that the health and safety of the gnevors have been placed m unnecessary nsk. some nsk bemg-part and parcel of ambulance officer posItIons Weare not satIsfied that the standby shIfts are more lIkely than not to lead to an mcreased assumptIOn of unnecessary nsk. Our conclusIOn m thIs matter IS buttressed by the terms and conchtIOns of the CollectIve Agreement That document clearly sets out the agreement of thIs employer and thIs umon, that members of the bargammg umt wIll work standby shIfts In agreemg to standby shIfts the umon agreed to some adverse Impact on sleep patterns That bemg so has the employer dIscharged ItS oblIgatIOn to take reasonable precautIOns for the health and safety of ItS employees? We find m thIs case that the employer IS now chschargmg ItS oblIgatIOn to ItS employees as a result of It havmg revIsed the work schedule The revIsed schedule sIgmficantly lImIts the length of tIme that an employee may be reqUIred to work. as well as ensures at least eIght hours of rest and generally twelve between shIfts Moreover appropnate facIlItIes are provIded for the employees We also agree wIth umon counsel that Just because the CollectIve Agreement states that the employer wIll contmue to provIde healthy and safe workmg conchtIOns does not mean that conchtIOns such as work schedules m effect at the tIme the Agreement was entered mto are frozen and cannot be subJect to challenge under ArtIcle 23 01 Nevertheless It IS our VIew that thIs Agreement explIcItly contemplates that standby shIfts wIll be worked, and for gnevances callmg for the elImmatIOn of those shIfts to succeed, gIVen thIs explIcIt proVIsIOn and gIVen the fact 45 that the schedule has now been sIgnIficantly revIsed, the umon must persuasIVely demonstrate that the schedule and workmg conchtIOns wIll more lIkely than not result m the possIbIlIty of unnecessary nsk to the health and safety of ItS members It must also show that the employer has not taken reasonable precautIOns ThIS eVIdence need not be gIVen by experts but what eVIdence IS brought forward must be compellmg partIcularly where the umon has as It has m thIs case agreed m the CollectIve Agreement to the performance of the subsequently contested work. [99] Thus, the questIOn whether prOVISIOns that would reduce a nsk to health or safety are "reasonable provIsIOns" wlthm the meamng of ArtIcle 9 1 must be assessed m the collectIve agreement context m whIch the questIOn anses By way of example If workers who consIder themselves underpaId and overworked are statIstIcally more hkely to suffer adverse health outcomes than those who do not feel that way, It does not follow that ArtIcle 9 1 reqUIres that the employer mcrease the pay of workers who consIder themselves underpaId and overworked The adequacy of compensatIOn and propnety of workload are to be measured first agamst what the partIes have agreed about those matters at the bargammg table The focus of ArtIcle 9 lIS on whether there are nsks to health and safety that are not necessary or reasonable havmg regard to the nature of the employment The bargam struck at the bargammg table IS an Important measure of the nature of the employment The collectIve agreement m force when thIS gnevance was filed provIded a premIUm rate of pay for overtIme hours worked That premIUm rate must be presumed to reflect what the partIes consIdered appropnate compensatIOn for the addItIonal exposure to the mherent or necessary nsks of correctIOnal officers' work that theIr performance of overtIme entaIled Job StraIn and Effort/Reward Imbalance [100] The umon contends that correctIOnal officers at the Toronto JaIl suffered from Job stram and effort/reward Imbalance and were therefore at greater nsk of certam adverse health outcomes There are several problems wIth thIS part of the umon's case One IS that the eVIdence of Job stram and effort/reward Imbalance IS msufficlently rehable Another IS that the eVIdence does not estabhsh that there was any reasonable measure that the employer could have taken to reduce Job stram and effort/reward Imbalance In partIcular, the eVIdence does not estabhsh that Job stram and effort/reward Imbalance would have been reduced by reducmg the number of mmates m the mstItutIOn or by mcreasmg the number of correctIOnal officers aVaIlable to work m 46 the mstItutIOn or by otherWIse reducmg the amount of overtIme worked by correctIOnal officers [101] The two expert wItnesses agreed that, to use Dr Gram's words, The Karasek model, the effort reward Imbalance model, and theIr respectIve measures (the JCQ and the ERI questIOnnaIre) represent establIshed and valIdated models m research settmgs for measurmg charactenstIcs of work orgamzatIOn whIch are nsk factors for (assocIated wIth) a vanety of adverse health outcomes The expert wItnesses dIsagreed, however, about whether the results of Dr Lewchuk's survey rehably demonstrated that thIS workplace had charactenstIcs that created an elevated nsk of adverse health outcomes for correctIOnal officers [102] The rehablhty of the results of Dr Lewchuk's survey IS adversely affected by the possiblhtIes of selectIOn bIas and reportmg bIas These methodologIcal weaknesses are described m passages quoted from Dr Gram's report m paragraph [76] above The possiblhty of selectIOn bIas anses from the fact that less than 60 percent of the correctIOnal officers who were asked to do so actually completed and returned the survey Somethmg pertment to the outcome may have affected whether an officer responded, so that those who chose to respond may not have been representatIve of the entIre populatIOn of correctIOnal officers at the Toronto JaIl. [103] The purpose for whIch theIr answers were sought mIght also have affected how respondents answered the survey questIOns ThIs possiblhty of reportmg bIas anses from the fact that thIS survey was conducted for the purpose of estabhshmg, among other thmgs, the survey respondents' entItlement to compensatIOn. That fact may have mclmed those who dId respond to answer dIfferently, more negatIvely, than they mIght have done m a research settmg m whIch they had no reason to suppose that they could be advantaged by answermg m a partIcular way [104] The concern about selectIOn bIas was not adequately addressed by Dr Lewchuk. Nothmg was done to compare those who responded wIth those who dId not, assess whether officers who chose to respond were representatIve m matenal respects of Toronto JaIl correctIOnal officers generally I find that there IS a real possiblhty here that dIfferences m the perceptIOns and concerns of correctIOnal officers about Issues addressed by the survey affected whether they chose to complete and return It, and that 47 therefore Its results may not reflect the perceptIOns of the correctIOnal officer populatIOn m questIOn. [105] As for reportmg bIas, Dr Lewchuk testIfied that he beheved that the survey respondents were trustworthy Because the officers he had mtervlewed held a range of about the , OpposItIOn to overtIme, he thought that effects of the VIews unIOn s respondent's bIases for and agamst the umon's posItIOn were hkely to have cancelled out Dr Lewchuk mtervlewees were selected for hIm by the umon. WhIle they may have had a range of VIews, there IS no reason to beheve that the range and dIstributIOn of VIews m that sample was representatIve of the range and dIstributIOn of VIews of all correctIOnal officers at the Toronto JaIl. Accordmgly, the mtervlews seem an madequate basIs for a behef that reportmg bIases would have a net neutral effect Moreover, It IS apparent from hIS testImony that m formmg hIS behefs m thIS regard Dr Lewchuk dId not take mto account the fact that It was not Just the avaIlablhty of overtIme that was at stake the rehef claImed m the umon's gnevance mcluded compensatIOn for all employees for theIr havmg been exposed to the alleged adverse health outcomes and nsks of such outcomes for whIch the survey was meant to test [106] There IS no suggestIOn that the gnevance's eXIstence or the claIms bemg made m It or ItS connectIOn wIth the survey were kept secret, and no eVIdence about what employees at the Toronto JaIl were told m that regard. In the absence of eVIdence to the contrary, It IS reasonable to suppose that at least some of those employees were aware of the gnevance and the claIms bemg made therem, and would have recogmzed the possible connectIOn between the gnevance and the survey to whIch they were asked to respond The survey's Job demand/control and effort/reward Imbalance questIOns were recIted earher m paragraph [69] of thIS decIsIOn. It would not have been dIfficult for a survey respondent to guess whIch answers to those questIOns would be most supportIve of the claIm for compensatIOn bemg made by the umon on hIS or her behalf. [ 107] For these reasons I am not persuaded that the survey results are a rehable and representatIve measure of "Job stram" and "effort/reward Imbalance" (as those terms have been defined m the hterature) expenenced by correctIOnal officers at the Toronto JaIl. 48 [108] Even If the survey results were a rehable and representatIve measure of "Job stram" and "effort/reward Imbalance" m thIS workplace, however, that would not be enough to estabhsh that the employer had breached ArtIcle 9 1 Those results purport to show no more than that correctIOnal officers at the Toronto JaIl have a hIgher nsk of adverse health outcomes than other workers m other occupatIOns It IS not at all clear from the results and the supportmg hterature whether the dIfference m nsk IS small or large In any event, the Issue under ArtIcle 9 1 IS not whether employment as a correctIOnal officer at the Toronto JaIl carnes wIth It greater nsks than does employment m other occupatIOns The Issue IS whether correctIOnal officers at the Toronto JaIl were exposed to nsks that were unnecessary or unreasonable havmg regard to the nature of theIr employment as correctIOnal officers or, to put It another way, whether there were reasonable prOVISIOns that would have reduced the nsk m questIOn by more than a margmal degree [109] The umon argues that overcrowdmg and understaffing created unnecessary nsks to health because they resulted m exceSSIve overtIme work, that the exceSSIve overtIme work created unnecessary health nsks and that reducmg overtIme worked by reducmg overcrowdmg and understaffing would, m turn, have reduced the health nsk assocIated wIth the exceSSIve overtIme [110] Even If they are rehable, the results of the "Job stram" and "effort/reward Imbalance" components of Dr Lewchuk's questIOnnaIre do not estabhsh that exceSSIve overtIme created any health nsk not otherwIse mherent m workmg as a correctIOnal officer There IS no eVIdence of how an otherwIse sImIlar populatIOn of correctIOnal officers who were workmg sIgmficantly less overtIme would have responded to the same survey, partIcularly a survey hkewlse admmlstered m aId of a gnevance that sought compensatIOn on theIr behalf on the basIs of theIr havmg been exposed to workmg condItIons alleged to be stressful. WIthout eVIdence of the baselme "Job stram" and "effort/reward Imbalance" scores mherent m the work of a correctIOnal officer, the survey results cannot support a conclusIOn that a reductIOn m overtIme worked would have led to a sIgmficant reductIOn m "Job stram" and "effort/reward Imbalance" reported by the affected officers There IS therefore no emplncal basIs here for concludmg that reducmg overtIme would have reduced the nsk assocIated wIth those condItIons by more than a margmal degree 49 [ 111] Furthermore, It IS not at all ObVIOUS that eIther "Job stram" or "effort reward Imbalance" scores would be mcreased by the workmg of substantIal amounts of overtIme m the CIrcumstances revealed by the eVIdence Dr Lewchuk conceded that workmg overtIme mcreased the reward as well as the effort, and that he could not say what the net effect would be on "effort reward Imbalance" Job stram focuses on work demands and control. WhIle mmate overcrowdmg may have created a sense of decreased control over mmates and workmg overtIme mcreased Job demands, the eVIdence IS that workmg overtIme also mcreased the officers' control over the tImes when they worked and the assIgnments at whIch they worked, at least for the officers who volunteered to work overtIme Indeed, It was the thrust of the employees' testImony that management was so desperate to have people at work that officers were also allowed to get away wIth substandard work effort. It IS not at all clear that the net effect of these factors would have been to mcrease the overall "Job stram" score of the correctIOnal officers who worked overtIme [112] One of Dr Lewchuk's arguments or hypotheses was that the more overtIme an officer worked the longer s/he was exposed to the condItIons that cause "Job stram" and "effort reward Imbalance," and that thIS longer exposure mcreased the hkehhood that s/he would expenence the sort of adverse health outcomes that are statIstIcally assocIated wIth "Job stram" and "effort reward Imbalance" In support of thIS he saId that the hterature shows that Job stram has a dose effect that the nsk of adverse health outcomes mcreases the longer (m calendar terms) the employee has been exposed to Job stram. However correct thIS may be, the questIOn remams whether the nsk m questIOn IS anythmg more than an mherent nsk of employment as a correctIOnal officer, whether there IS a "reasonable provIsIOn" that would reduce It The eVIdence does not estabhsh that the mcremental nsk of an hour's exposure to "Job stram" or "effort reward Imbalance" IS any greater durmg overtIme hours than durmg a regular hours Accordmgly, there does not seem to be any partIcular reason to treat overtIme hours dIfferently from regular hours m assessmg whether there IS a reasonable prOVISIOn that would reduce the nsks assocIated wIth supposed Job stram or effort reward Imbalance 50 Long hours of work as a health nsk [113] I accept Dr Gnam's opmIOn that the hterature on whIch Dr Lewchuk rehes does not support a findmg that there IS a causal relatIOnshIp between long work hours and adverse health outcomes I accept that those who make unhealthy chOIces about theIr dIet, exerCIse and sleep are more hkely to suffer adverse health outcomes than those who do not. If there IS a statIstIcal aSSOCIatIOn between workmg long hours and makmg unhealthy chOIces about dIet, exerCIse and sleep, that does not prove that the effects of the latter are causedby the former m any sense pertment to the Issue before me In any event, even If workmg overtIme were shown to be a per se health nsk there would stIll be the questIOn whether there IS a reasonable prOVISIOn that the employer was obhged to make m the cIrcumstances, beyond havmg made the overtIme voluntary [ 114] Whatever may have been saId to Dr Lewchuk durmg hIS mtervlews, no employee has testIfied before me that s/he worked overtIme because s/he felt compelled to do so ThIs IS not a case hke Fernll et aI., supra, where employees were bemg compelled to work a combmatIOn of regular and standby shIfts that mIght result m theIr bemg at work for 32 consecutIve hours Nor IS It hke Sl111, supra, where an employee complamed that bemg scheduled to work two succeSSIve mght shIfts would adversely affect her health when she also had to attend an arbItratIOn hearmg durmg the daytIme hours between the two shIfts In Sil11, the employer had told the employee that It would grant a vacatIOn day or heu day for the first of the two shIfts, thus removmg the compulsIOn to work that shIft. The Board found that removmg the compulsIOn and grantmg a requested heu day was a sufficIent response to the gnevor's reasonable concerns for her health. [115] Durmg hIS cross exammatIOn Dr Lewchuk argued that It dId not matter whether the overtIme work was voluntary He suggested that preventmg workers from workmg exceSSIve overtIme was hke puttmg guards on dangerous machmes to reduce the nsk of mJury to the operators of the machmes He noted that even If removmg such a guard mIght mcrease the operator's productIvIty and, so, gIve hIm an economIC mcentIve to assume the mcreased nsk, we nevertheless reqUIre that dangerous machmery be quarded wIthout regard to whether the operator volunteers to operate wIthout the guard. I am not persuaded that thIS analogy IS apt. It IS true that when all the costs and benefits are consIdered, the nsks of some actIvItIes are so out of 51 proportIOn to the benefits of assummg them that pubhc pohcy reqUIres that workers not engage m those actIvItIes, even If they volunteer The eVIdence before me does not estabhsh that workmg overtIme IS an actIvIty of that sort [116] It IS not apparent that, as umon counsel argues, sectIOn 18 of the El11ploYl11ent Standards Act embodIes or reflects a pubhc pohcy standard wIth respect to health and safety Apart from the Act Itself and certam of the regulatIOns thereunder, there IS nothmg before me wIth respect to the motIvatIOn of the legIslature m enactmg that prOVISIOn. [117] Dr Gnam testIfied that m hIS opmIOn workmg 80 hours or more per week over a perIOd of several months would probably result m adverse health outcomes If the eVIdence had estabhshed that officers were claImmg entItlement to and consIstently workmg 80 hours or more per week over extended perIOds pursuant to the eXlstmg overtIme protocol and that the employer had reJected a umon proposal to amend the protocol to so as to preclude such outcomes, then on the basIs of Dr Gnam's testImony I would have been mclmed to find such a refusal to be a breach of ArtIcle 9 1 As It IS, there IS no eVIdence that the umon made any "wIth preJudIce" proposal to amend the protocol m that way, and It IS not at all clear that officers were performmg overtIme to that extent Officer #6 saId he worked 60 hours or more each week. If he could have described hImself as workmg 80 or more hours each week, I beheve that he would have done so I mfer that he was not m a posItIOn to say that If he could not say that, then on the eVIdence before me It seems unhkely that anyone else at the JaIl could do so Long Work Hours and Safety or Secunty RIsks [118] One of the umon's contentIOns IS that the effects of overtIme work on the correctIOnal officers who performed It, and partIcularly theIr resultmg fatIgue, created safety and secunty nsks for all employees, and that the employer should therefore have taken steps to reduce the amount of overtIme worked by reducmg ItS need for overtIme work. [119] I have no dIfficulty acceptmg as a general proposItIOn that a correctIOnal officer who IS tIred may not perform as well as one who IS not, and may be less effectIve at preventmg or respondmg to secunty and safety problems ThIs IS so whether the officer's fatIgue results from workmg overtIme hours or from hIs/her actIvItIes away 52 from the workplace The employer can reqUIre that a correctIOnal officer meet a reasonable standard of performance wIth respect to preventmg or respondmg to secunty and safety problems I accept that the employer should enforce such a standard m the mterest both of the correctIOnal officer whose performance IS m Issue and of those who work wIth her or hIm. Employees have a concomItant obhgatIOn to report unsafe condItIons, mcludmg the apparent mablhty or unwlllmgness of a fellow employee to perform to the reqUIred safety standard. [120] These proposItIOns are easIly stated m the abstract The dIfficulty IS m the detaIls what IS a reasonable standard and how does one determme m advance whether an officer wIll be able to perform to that standard? An employee who has never before faIled to meet the standard mIght Justly complam If demed scheduled or overtIme work to whIch s/he IS otherwIse entItled merely because s/he seems tIred or IS lIkely to be tIred because of hIs/her recent actIvItIes at or away from the workplace WhIle a fellow employee may be understandably reluctant to challenge the competence of a correctIOnal officer except m a clear case, the same may be saId of management, who may faIrly expect any such actIOn to the subJect of a gnevance [ 121] The employees' eVIdence that those who worked overtIme were tIred comports wIth common sense, and IS entIrely credible I also accept theIr eVIdence that officers were sleepmg m the staff lounge durmg theIr breaks, and were takmg longer breaks that was ordmanly permItted An officer's sleepmg whIle legItImately on break may raIse a concern about hIs/her fatIgue level, but IS not Itself a safety Issue An officer's bemg absent from hIs/her post on break for longer than the allotted break tIme raIses a performance Issue and may also create a workload problem for hIs/her colleagues It does not raIse a safety Issue, however, unless an officer wIth whom the absent officer was supposed to be workmg IS reqUIred by management to perform tasks that would be unsafe wIthout backup from the absent officer [122] Although officer #10 spoke m general terms of belIevmg that officers had to cut corners to get theIr work done and that superVIsors would turn a blmd eye If they dId, the eVIdence dId not establIsh to my satIsfactIOn that thIS belIef had an obJectIve basIs grounded m the actual behavIOur of management There was no eVIdence of a supervIsor's havmg wItnessed and faIled to deal properly wIth a breach of standmg 53 orders wIth respect to backup or otherwIse There was no eVIdence of an officer havmg been dlsclplmed or threatened wIth dlsclplme for refusmg to perform work that reqUIred backup and for whIch no backup was avaIlable or for refusmg to perform work that was otherwIse unsafe by reason of another officer's absence or mcapaclty Officer #10 dId testIfy that on occaSIOn her partner had nodded off and had to be nudged awake She testIfied that thIS had been seen by other non custodIal staff, but dId not claIm that It was seen by or reported to any superVIsor Officer #1 testIfied that on one occaSIOn hIS partner fell asleep whIle servmg as hIS backup He dId not testIfy that thIS was wItnessed by or reported to a superVIsor, however, a fact made more sIgmficant by hIS testImony that he had complamed to a superVIsor when hIS partner had stayed on break too long [ 123] The possibIlIty that a correctIOnal officer or officers wIll fall to perform to a reasonable standard as regards safety and secunty IS ordmanly a problem to be addressed by the employer on a case by case basIs as the occaSIOn anses The eVIdence does not persuade me that the employer was unable or unwlllmg to do that, nor that ItS standmg ready and wIlhng to do that was an msufficlent response to the possibIlIty that overtIme assIgnments would be sought and accepted by employees who were too tIred to properly perform the reqUIred dutIes Au QualIty [ 124] The fact that employees complamed about aIr quahty m the mstItutIOn IS not eVIdence that the mstItutIOn's aIr handlmg eqUIpment created a health or safety problem. The consultant's report m August 2001 IdentIfied problems that should be addressed, but charactenzed them as comfort Issues rather than health Issues The report was entered mto eVIdence wIthout challenge Umon counsel dId not argue that I should accept the report's conclusIOn that there were problems, but reJect ItS conclusIOn that the problems were not serIOUS enough to be charactenzed as health Issues Whether the report IS accepted or reJected as eVIdence of the truth of ItS contents, the eVIdence before me does not support a conclusIOn that m matters of aIr qualIty the employer faIled to make reasonable prOVISIOn for the health and safety of employees Decision 54 [ 125] I have no dIfficulty understandmg why that the umon was so concerned about the condItIons at the Toronto JaIl that It filed thIS gnevance m July 2001 For the reasons I have set out m thIS deCISIOn, however, I am not persuaded that the employer faIled to make reasonable prOVISIOns for the health and safety of employees at that mstItutIOn. ThIs findmg should not be taken as approval or endorsement of the Mmlstry's havmg allowed the overcrowdmg to contmue or of ItS havmg chosen to have so much work performed on an overtIme basIs by eXlstmg staff wlllmg to perform It for premIUm rates, rather than engage addItIonal staff to perform such work on a straIght tIme basIs My conclusIOn that thIS gnevance must be dIsmIssed reflects only my recogmtIOn that, on the eVIdence before me, those chOIces were not precluded by ArtIcle 9 1 of the collectIve agreement oronto thIS 19th day of May, 2005