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HomeMy WebLinkAbout1985-0952.Bolton.87-09-16IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN : OPSEU (S.Bolton) BEFORE : FOR THE GRIEVOR: FOR THE EMPLOYER: HEARING: - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of Revenue) . J.E. Emrich Vice-Chairman L. Robbins Member M. O’Tools Member J. Roland counoe1 Gowling and Henderson Barristers and Solicitors S. A. Currfe Staff Relations Officer Humail~kesources Secretariat 0952f 85 Griever Employer Tne grlevor, i'ls. Snirley ~c?ron, &as classified as a Clerk 3 General with the Assessment Division of the Ministry of Revenue in Brockvllle at the tlme the grievance was lodged on September SO, 1985. Since 1981 the grievor has been working with visual display terminals (V.D.T.) for word processing., In 1981 the Mohawk system was in .place, but on July 8, 1985 the Employer converted to a different system known as DASYS which did not have an anti-glare screen on the V.O.T. The grievor stated that her job duties require her to work on a V.D.T. for more than two hours and up to seven hours a day on a regular basis. While workfng on the new OASYS system, the grievor began to experience symptoms of eyestrain and consulted her ophthamologist, Dr. Edwards. He prescribed glasses with anti-tint glare and~some correction for a(yopfa and-astigmatfsm, The grlevor claimed reimbursement from the Employer for the full cost of the glasses of $199.50. The Employer took the position that vlsion care benefits were limited to $60 pursuant to Article 44.3 of the collective agreement and that amount was paid to the grievor. The Union contends that the Employer is liable to reimburse the grievor for the balance of the full cost of the glasses pursuant to its obligations under Article 18.1 of the collective agreement. The relevant provisions of the collective agreement are the following: 18.1 The Employer shall continue to make reasonable provlsions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. I 13.2 18.3 18.4 18.5 18.6 18.7.1 : The Employer shall provide safety eqiipment and protective clothing where it requires that such shall be worn by its employees. The purchase of safety shoes or boots for on-the-job protection of the purchaser shall be subsidized as per the applicable practice in each ministry. The current practices relating to the supply and mafntenance of apparel for employees shall continue during the term of thfs Agreement, subject to any changes which may be entered into between the parties at the local or minfstry level. After each hour of continuous operator shall be relieved of ten (10).minutes. operation of a VDT, a VDT such duties for a period of At the beginning of assignment to a MT and annually thereafter, a VDT operator who Is regularly required to operate a'VD1 for two (2) hours or more per day shall be required to undergo an eye examinatfon by an optometrist. or an ophthalmologist who is qualified to conduct the following tests: (a) unaided vfsuel acuity ('letter chart test) Ib) refractive ffndlngs (cl corrected visual acuity Id) amplitude accomnodatfon (el suppression (f) muscle balance (near, one metre, distant) (g) slft lamp biocnicroscopy. The cost of the eye examination, not to exceed the OHIP fee schedule for such examinations;shall be borne by the Employer, and the VDT operator shall authorize release of a copy of the examination report to the EmplOYer. A pregnant VDT operator may request reassignment from VDT, duties for the remainder of her pregnancy by forwarding a written request to the Employer together with a certificate from a legally qualified medical practitioner certifvins that she is Dreqnant. 18*8 ..Video display termix: work stations shall be equipped wrth tables or stands for the terminal to permit it to be at a height appropriate to the circumstances of its use and the seating avaflable for the operator. The chair provided shall have a seat which is adjustable in height, a back rest which is adjustable in height, and a foot rest where necessary to accommodate a particular operator. Where appropriate to the nature of the work, paper stands or work'stands shall be provided. 44.3 Effective-September 15, 1982, the Employer agrees to pay 50% of the monthly premiums for vision care and hearing aid coverage, under the Supplementary Health and Hospital Plan, wlth the balance of the monthly premiums being paid by the employee through payroll deduction. This coverage fncludes a $10.00 (single) and $20.00 (family) deductible in any calendar year and provides for vision care (maximum $60 per person,in any 24-month period) and the purchase of hearing aids (maximum $200 per person once only) equivalent to the vision and hearing component of the Blue Cross Extended Health Care Plan. Mr. Chase Casagrande is Field Operations Coordinator with the Assessment Division of the Ministry of Revenue. He was responsible for the conversion to the OASYS system which was Implemented In the Brockville Assessment Office in the months from May to July, 1985. Training on the new system was initiated in May and the system was operational fran July 8, 1985. The traInin programme included information concerning adjustments which could be made to the V.O.T. to reduce glare through the controls for brightness and contrast and for the angle, tilt and height of the screen. Mr. Casagrande had each office reviewed for placement of the equipment in respect to -windows and the provfsfon of proper tables and chairs to reduce the discomfort for the individual operators arising from such factors as posture and glare. He added that follow-up after Initial implementation was conducted and memos were sent out advising of the . availability and method of ordering such supplementary aids as anti-glare shields and lead aprons. The following memo was sent to Mr. Baxter who had handled implementation of OASYS in the Brockville office: I realize that as of yet OASYS has not been implemented in all the Reglonal Assessment Offices. However, I would like all Assessment Commfssioners to note the following: - Be advised that from now on purchases of antj-glare screens, lead aprons or any other peripheral equipment which may be used in conjunction with OASYS must first be, authorized by Mr. Earl Winter, Director of Assessment Field Operations Branch. * This wfll not only give us a chance to Investigate the product but will also give the opportunity to possibly obtain volume discounts as well as assess the suppliers. In fact, the grievdr's supervisor at the time, Mr. Sherman Jackson, was not aware of the availability of antl-glare screens untfl #ovember, 1986 when the matter was raised by the Unfoh's Shop Steward and Occupational Health and Safety Representative, Mr. Ronald Miller. Shortly thereafter, Hr. Jackson ordered the screens and they were put in place on the OASYS V.D.T.'s In November 1986. Hr. Jackson holds the positfon of Data Services Manager at the Brockvflle Assessment Office. He explained that the Mohawk system in use prior to conversion to OASYS came equipped with an anti-glare screen. He could not recall any specific complaints being raised by the clerks at the Brockville office concerning problems with glare with the OASYS V.0.7.. except with respect to the location of one terminal which had been placed adjacent to a window. The terminal was moved from this locatlon and to reduce the glare problem. He was able to recall a meeting on September 5, 1985 when he met with the grievor dnd Mr. Miller concerning her demand . until she :,,: to oe relieved.from assignments on the OASYS V.D.1 received her new glasses pursuant to 'Article 23(3a) of the Occupational Health and Safety. Act. Mr. Jackson acceded to the grievor's position and asked her to provide medical evidence to substantiate her refusal to work on the V.D.T. Once the grievor obtained her new glasses, she recommenced.V.D.T. assignments. The grievor noticed that after she began working on the OASYS system, she began to experience blurring of vision and persistent headaches, even after making adjustments for brightness, contrast and positfonlng of the screen which she had been taught in training. She explained that she mentioned this at some point to Mr. Jackson along with other clerks, but she admitted that she did not raise a specific complaint to him in his,office until September 6, 1985. She decided to consult the ophthalmologist who has cared for her since childhood, Dr., G. Keith Edwards of Ottawa on August 30, 1985. Dr. Edwards completed the Ministry's standard Pow Eye Examination Report on that date, which. was filed In evidbnce. On September 16th. 1985, he forwarded a further report to Ms. Bolton In response to Hr. Jackson's request at the September 5th. 1985 meeting with Ms. Bolton and Mr. Miller. The relevant portion of the report reads as follows: Thank you for your letter - the following is a report on your eyes. - Patient complains of eye fatigue and intermittent blur while working on V.D.T. - Patient has one weak eye - some astigmatism in the other eye. - Glasses were prescribed with tint and anti-glare coating to reduce symptoms Of eye strain while working on the V.D.T. Gn Septem&r Z, 1965,~ the grievor filed her request for reimbursement for the full cost of the tinted glasses prescribed by Dr. Edwards of $199.50, less the $60 payment for vision care under the Supplemental Health and Hospital Plan. .Mr. Jackson repli,ed in writing on September 25, 1985 that there was no provision for canpensation other than that provided under the Supplemental Health and #ospital Plan. Following this reply, the grievor launched her grievance. A further medical report from Dr. Edwards was filed at the.hearing dated October 24, 1986 which provides a more complete history and aidgnosis. The report was duly served in accordance with the provisions of s.52 of the Evidence Act. The relevant portion of the report reads as follows: Hiss Bolton has been seen by me intermittently since Jan. 1964. As a child she presented with an ocular condition called anisometropia In whjch visual acufty in her R eye was weak. She was treated by use of spectacles and occlusion of her dominant eye to increase visual efflcfency of her R eye. In her teens she did not wear glasses. ' Miss Bolton was last seen by me Aug 28/85 on referral fraa her family M.D. - Dr. Jones of Kemptville, Ont. At this visit she complained of eye fatigue and intermittent blurred . vision while working at V.0.T terminal. Dn examination of her eyes at that time we found the following refractIon: R eye - 225 + 550 x 90. L eye - ,025 + 050 x 180 giving visions of 20/60 R and 20/20 L. This prescription means that she is short sighted with astigmatism in the R eye and mild degree of the myopia and astigmatism in the L eye. Assuming her symptoms which occurred at V.D.T were probably related to glare and reflections I ordered a balance lens for R eye and a mild correction for short sight and astfgmatlsm L eye - thts prescription was to contafn anti-glare tint for use while working on the V.0.T as this type of help seemed to relieve other patients with V.D.T. related symptoms. 1 have not seen Miss Rolton since Aug. 85 and thus do not know if her symptoms were relieved. With regards to V.D.T.'s and eye problems in general there have been many studies by various professional and scientific groups. I will attempt to briefly summarize these voluminous reports. The American Academy of Opthalmology has issued a statement on V.D.T. The Academy does nit feel that organic eye pathology result from V.D.T. exposure. The emissions are well within international safety standards. Aside from the question of pathology is the .question of physical discomfort. A number of studies have suggested that V.D.T. operators may experjence dfscanfort as a result of their work. These complaints include visual discomfort, backaches and muscular pain associated with posture. As is ' true in any workplace attention to type of lighting and reflectance levels of work surfaces is important to improve employee comfort and efficiency. The Academy states that there is the capability to reduce ocular fatigue by using filters or tints in eyeglasses or by coating the V.D.T. screen wfth an ultraviolet and infrared screenfng material. They state that further research in thfs area Is indicated. The Canadian Opthalmological Society bulletin on V.D.T. gives similar information and stresses the need for well designed equipment, variety of tasks while working, and good illumination. The Society also emphasltes that there may be other factors fn creating the symptoms in V.D.T. workers such as stress and general physical condition. A report from the Dept of Health and Human Services Division of the U.S. Food and Drug Administration suggests that the. complaints of the V.O.T. worker may.be ,in the field of ergonomics, i.e. the work environment, the demands of the job. and the workers' physlcal condition. Studies have identified the following ergonomic factors that may have a bearing -' room lighting, glare from display screens, incorrect equipment and layout. With regard to filters placed over the V.D.T screens the following is data from the Convnittee on vision put out by the National Research Council 1983. They really did not come to any final conclusion. They felt general filters are most effectfve in reducfng dfffuse reflections rather than specular reflections. This is unfortunate because specular reflection cause the greater loss of contrast and probably ;o;t;lb;te more to the problems encountered in viewing . . . . Filters do reduce glare land reflections to some degree. Because their effectiveness is limited, filters should be considered as a supplement ahd not as a repl,acement for control of lfght and reflecting sources. There are trade offs In the use of screen filters since some slightly reduce glare but at the same time can reduce image quality. In conclusion there are no hard and fast answers to the visual problems associated with V.D.T. use. As a clinical ophthalmologist and not a research expert I see many patients who relate visual symptoms to V.D.T. use. These complaints are seldom explained on the basis of any single factor. Many i2,tt$ks are involved - for example quality o< er+ipaen:, general health of the individual, ocular status, work stress, illumination, reflections, etc., etc. Each patient has to be individualfzed - in some cases a screen may suffice - in others correction of reflective error and tinted lens - in others modffications of room illumfnatfon - in others variety in work load, etc. The grievor found that the correction for refractive error with tint and coating to reduce glare provided by her new glasses were sufficient to alleviate her discomfort. She no longer suffered from headaches and blurred vision. Although she tried to work without her glasses once the anti-glare screens were.provided in November, 1986, she found that.her symptoms returned. Ms. Bolton consulted Dr. Edwards again for follow-up on May 19, 1987. He reported that the griever had undergone nq change in her ocular state since August, 1985 and no change in prescription was made. He descrfbed the grfevor as managing quite well by~wearing the prescribed glasses at work. The grfevor explained that she only wears the glasses for tasks of more than 15 minutes on the V.D.T. and otherwise does not wear glasses at all. She was not aware'that the prescribed lenses corrected for refractive error and astigmatism. She percefves herself as havfng no difficulty wfth vision other than the problems she was experiencing while working for lengthy periods on a V.D.T. without the prescribed glasses. Mrs. Lynda Heath holds the position of Health and Safety Coordinator with the Human Resources Secretariat of the Management Board of Cabinet. She gave evidence as to the sort of factors which cause eyestrain for V.D.T. operators and the measures used to deal with the problem. Her evidence was substantially consistent with the summary of literature provided by Dr. Edwards in his report of October 21, 1986. Much to the same effect were the reports excerpr?C iron; ner resource file on the .subject and filed in evidence. In general terms, the reports indicate that prolonged operation of V.D.T.'s do not cause eyesight to deteriorate per se. Visual symptoms such as blurred visSon and systemi; symptoms such as headache and fatigue may be experienced as a result of a number of factors - vfsual problems such as uncorrected eyesight deficiencfes: eg. myopia, presbyopia, and . astigmatism, design faCtOFs'Of the equipment such as brightness, contrast, positioning of the screen and keyboard; work environment factors such as the po;itioning of the operator in relation'to the equipment, the ambient lightfng level; reflective properties of work surfaces and proximity to windows and window coverings; task demand factors such as frequency of rest periods, the nature and quality of assignments performed and Indivfdual factors such as the individual's overall level of physical fitness and psychological stress. The ovenhelming weight of the expert oplnlon appears to be that radfation emitted from V.D.T.'s or prolonged eyestrain do not~cause irreparable damage to OF Irreversible alterations to ocular structures so as to cause permanent injury to ocular OF visual systems. To promote the V.O.1 operator's comfort, measures are taken first to reduce problems in the equipment design and work environment itself through such means as an anti-glare screen, reducing the reflective properties of work surfaces, repositioning equipment, documents and the operator for maximum comfort, and reducing the ambient lighting level. Rest breaks assist to relieve from the intense concentration associated with uork on a V.D.T. Eye examfnatfons are recommended to detect deficiencfes which may be contributfng to the eyestrain experienced. If such oeiiciencies can be CO,FFE!Cted by a prescri;:ior: Of~cofrective lenses, such may be necesary to relieve symptoms of ocular or visual strafn an individual operator may be experiencing from prolonged work on a V.D.T. ' Counsel for the Union argued that Article 18.1 was a substantfve provlsion which captures the employer's concomitant obligation under s.l4(2)1g) of the Occupational Health and Safety Act to take every reasonable precaution for the protection of the Worker. He argued that the grievor's SymptomatoTogy of visual disturbance and headache are cons&on pFObT,emS associated with prolonged operatton of a V.D.T. Furthermore, Mr. Roland pointed out that the evidence had demonstrated that the griever's symptoms were only relieved by the glasses~ prescribed and that these glasses were only required for her work on the V.D.T. and for no other purpose. Thus It was contended that the most efficient solution to the grievor's visual problem could be obtained at a relatfvely affordable cost. Since the grievor required the glasses oniy to perform her job duties on a V.D:T., it was contended that the Employer is obliged to make reasonable provision to ensure the, safety and health of I%. Bolton while operating the V.D.T. by paying the balance of the cost of her glasses. Ms. Currie, arguing on behalf of the Employer contended that the onus was upon the Union to establish that damage to the employee OCCurred, that the damage was caused by the requirements of her work and that the employer had falled to take reasonable steps to-prevent the damage OCCUFFing. Furthermore. MS. CUFFie pointed out that making reasonable provisions to ensure the safety and health of employees is to be distinguished from paying for a particular item of safety equipment. In support of this distinction, Ms. Currie cited the cases OPSEU (Davidson) and Ministry of Natural Resources GSB File #595/89, - , OPSEU (Gillies)"and Ministry of Correctional Servi?es GS5 iile #339/82, and OPSEU (Union Grievance) and MiniStFy of the Solicitor General GSB File #1511/84. On behalf of the Employer, it was contended that Article 18.1 envisioned a cooperative effort to promote safety and health on .the part of both parties~to the collective agreement. It was claimed that in the circumstances of this case, the grievor's SU~~FV~SOF was afforded no real opportuntty to canvass alternative solutions for dealing with the grievor's problems with glare from her V.D.T. until he was confronted with her refusal to work and the eyeglasses had already 'been ordered.' In these circumstances, it was contended that the Employer had taken reasonable steps to ensure the grlevor's comfort whfle operating her V.D.T. with attention to the design features of the e.qulpment. the training provided and compliance with the other relevant obligations specifically mentioned in Artfcles 18.5, 18.6, 18.8 and 44.3 of the collective agreement. It was emphasized that it was not Incumbent upon the Employer alone to eliminate from the work environment every possible risk to every employee either under Article 18.1 or the Occupational Health and Safety Act. The case of OPSEU (Alaksa, Polfer & Brown) and the Hinistry of the Solicitor General GSB, File # 1130/84, 1136/84 and 1137184 was cited in support. The Board was invited to find that given the care that was taken in conforming the work environment, task demands and equipment design to the needs of the V.D.T. operators, and given that the grievor was allowed to stay off V.D.T. assignments until she obtained her eyeglass prescription, she had been afforded reasonable provision for ht?F health and safety in accordance with Article 18.1. If the Employer were to be required to pay for the eyeglasses, a specific benefit for this purpose would have to be ne;stiatz.. : Y.;:,. ;..CL cr;;iective agreement. According TV tnk ctirrt;;: collective agreement, the Employer's vfsion care benefit obligation was to pay $60 to the grievor under Article 44.3 and this obligation had been met. Having,reviewed thoroughly the evidence and argument, the Board is of the view that the Employer's position should be sustained. The evidence indicates that the grievor was suffering symptoms of eyestrain that have been reported as coimnonly arising during prolong"ed operation of a V.D.T. The cause of such discomfort has,been attributed to a wltitude of factors fncluding factors associated with the operator, such as uncorrected visual or ocular defects, psychological stress, and general level of fitness; factors associated with the equipment design such as brightness and contrast controls, detachable keyboard, tilt, . angle and height of the V.D.T. screen; factors associated with the work environment such as the level of ambient lighting and reflection from work surfaces; and factors associated with the work ‘tasks. In the instant case, the Board ffnds that the evidence indicates that the griever's discomfort arose from two primary sources: uncorrected visual defects that did not disrupt the acuity,of her vision until she was requfred to work for prolonged periods on the V.D.T. and secondly the glare associated with the V.D.T. itself. Although the grievor's supervisor ought to have been aware sometime in late August 1985 that anti-glare screens were available to reduce the problem. of glare fran the screen,.Mr. Jackson was apparently unaware of the availability of such screens until a complaint concerning the lack of such screens was raised by the Union in November 1986. Once the complafnt was made, ihe Employer responded promptly <o provide the anti-glare screens requested by Mr. Miller. In the circumstances pertaining to this grievance, it , -, is apparent mat r'iE :.:;1:oyer took measures to desjgn the work station in accordance with Article 18.8. The Employer trained the grievor to use adjustments for position, contrast and brightness of the V.D.T. screen and took care to place the terminal at locations in the office in relatfon to windows which reduced glare. No allegation was made that the grievor was unable to take the rest periods described in Article 18.5 and the grievor was required to undergo the eye examinatton specified in Article 18.6, the cost of which was borne by the Employer. When it was made known to the Employer that glasses were prescribed to the grievor for use whfle operating a V.D.T., the sixty dollar benefit specified in Article 44.3 of the collective agreement was paid. The Board is satisfied on the evidence that even if an anti-glare screen had been made avallable to the grievor from the time she uas required to work on the OASYS system, her problem with eyestrain'may not have been solved. The Board accepts that the solution which proved effective was the prescrlptton of glasses with corrective lenses for refractfve error and astigmatism, and anti-glare tint. In any event, the Employer allowed the grfevor to be relieved from work on the Y.D.T. for the short period of time it took for the grievor to have her eyeglass prescription filled. The Board Is satisfied that the eyeglass prescription was designed to assist the grievor while working on the V.D.T. and that otherwlse the grievor's problem with refractive error and astigmatism does not present her with any problem detectable by her.in carrying out her usual functions. The evidence is clear that she wears her prescribed glasses.only for work on the Y.D.T.. Ms. Bolton leaves her glasses at her work station and does not wear glasses to carry out other activities. tiavln; :&en the measures it did to relieve the grievor.of the discomfort she was experiencing after prolonged operation of the OASYS V.D.T.. ought it to be found that the Employer has failed to make reasonable provision for the safety and health of the grievor and that In order to'do so, the Employer must pay to the grfevor the full cost of her eyeglasses? The Board accepts that Article 18.1 is not mere surplusage. but Imports substantive obllgatfons fallfng upon the Employer to make reasonable provisions for the safety and health of its employees during the hours of their e&loyment. For example, In the case OPSEU (Gonneau) and Ministry of the Attorney-General GSB File #227/81, the Employer was held to be In breach of Article 18.1 by its failure to maintain free from icefhe parking lot which it controlled and to which its employees had access. The grievor had damaged her car and another, car, into which she had collided, owing to the icy condltIons of the parking lot. The Employer was held liable to pay damages in the amount of one hundred dollars to cover the deductible portion of the cost of repairing the grfevor's car. The grlevor was not held accountable for contributing to the cost of snow and ice removal, the burden of which would fall upon the Employer. However Article 18.1 also stipulates that it falls jointly upon the parties to the collective agreement to cooperate to the fullest -extent possible In the reasonable promotion of the safety and health of all employees. This joint responsfbflity was noted fn the case DPSEU (Davidson) and Ministry Resources, (GS8 f/595/801 at p.11 wherein the effect of the Occupational Health and Safety Act was considered upon the content of responsibilities in Article 3.10, which is identical in -- .,;::~,in.; ;; ;\r:i.cle 18.1. The Board commented uixr~;::iti Imeaning of tne Occupational Health and Safety Act as follows: The purpose and intent of the legislation is clearly to place responstbtlity both on the employer and the employees for health and safety in the workplace. The Board concluded that Article 3 specifically excluded Article 18 from applicability to unclassified employees. Furthermore, the Board held that neither the Occupational Health and Safety Act, nor Ministry policy, nor the wording of Article 3.10 imposed an obligation upon the Ministry to supply safety footwear. Rather, It was found that reasonable provision for safety and health could be made by ensuring that safety footwear was worn where necessary. At p-11, the Board made the follaring observation: The Unionargued that it would not make sense for the employees to have to supply theft own footwear because then they mtght have to supply their own fire extinguishers, and other equipment ~prescrfbed by the Act. The answer to this Is that the question of who supplies the equipment is a matter of bargaining between the Union WI the MfmlsUy. The Mlnlstry must ensure that the prescrfbed equipment, materials and protective devfces are provided (section 14il)(a)). The employees shall use or wear these articles (section 17(l)(b)). The question of who Is to pay for the equipment, materials and protective devices is not covered in the Act. If the employer provides the items. then he must ensure that they are iuafntafned in good condition (section 14(l)(b)), and are used as prescribed (section 14(1)(d)). But it is not the employers obligation to.supply all the prescribed equipment, materials and protective devfcec Indeed, the parties have recognized this for employees who are civil servants (Article 18.3 in the Collectfve Agreement), whereunder the purchase of safety footwear is "subsidized". The Davidson case was considered in two other cases cited to the Board - Re OPSEU (William Gillies) and Ministry of Correctional Services (GS8 #339/82) and Re OPSEU (Union grievance) and Ministry of - the Solicitor General (GSB #1511/841. In the Gillies case, the grievor claimed that the Employer had breached Article 18.1, 18.2, 18.3 or 18.4 i of the collective agreement by failing to proviae felt-l!nec saiary boots,to the gtievor for an outdoor assignment in cold weather. At p.5, the Board noted that at a minimum Article 18.1 requires compliance with the Occupational Health and Safety Act, but further imposes obligations not specifically covered by that legislation. citing the Gonneau case in support. At. pp. 8 and 9, the Board finds that neither Artfcle 18.1 nor the more specific Articles 18.2 and 18.3 oblige, then Employer to provide safety boots of any description, Rather, the oblfgation to make reasonable provisfon for health and safety in Article 18.1 was held to be satisfied by the Employer ensuring that safety footwear was worn by employees exposed to the hazard of foot injury. In the Gillies case, the grievor had requested felt-lined safety boots after starting his assignment. The employer was unable to respond to the request before the grlevor's short-term assignment had concluded. The Board held that any obligation to cpntinue its CUrtent practice of supplying felt-lined safety boots when requested pursuant to Artfcle 18.4 had been satisfied. In the union grievance case, GSB #X11/84, unclassified employees working as V.D.T. operators claimed entitlement to eye examinations pursuant to Article 3.10 (non 3.11) of the collective agreement. The eye examinations sought to be provided were the same as those set out in Article 18.6 for classified employees.- At p.14 of GSB File -#1511/84, Ms. Knopf writing the unanimous decision of the panel draws the following conclusion from the meaning of the Davidson case, GSB File #595/80: Ftnally, the case ts instructive In that it points out that the question of promoting and ensuring safety ought to be distinguished from the question of who bears the cost of ‘i ,, saitry'equipment. The cost of safety equipnehr r(as said to be a matter of bargaining. In addftion the reference to Article 18.3, although not specifically stated as such, must be understood to imply that where a specific benefit is obtained for the classified staff, the absence of such a benefft in Article 3 must be taken to indicate that the benefit does not apply to the unclassified staff. In the instant case, the Board was not directed to any provisions of the Occupatlonal Health and Safety Act which would require the Employer~to compensate classified employees for eyeglasses required when ustng a V.D.T. Thus, the question remafns whether such a specific obligation of the Employer can be implied from the general requfrement . to *make reasonable provfsfons for the safety and health of Its employees during the hours of their employment'. The Board notes that Articles 18.5 to and including 18.8 give specific content to obligations more generally captured in Article 18.1. That is not to say that Article 18.1 Is thereby emptied of content by the more specific provisions. However. a sp%clfic obligation to pay the cost of prescription eyeglasses impliedly flowing from the general obligation to make reasonable provlsion for the safety and health of employees during *orking hours is qualified by analogy to the other'specific obligations associated with the general obligation in Arttcle 18. In this case, it is to be noted fran Article.18.6 that where a specific cost is to be borne by one of the parties, it is expressly stipulated by whom it is to be borne. Article 44.3 stipulates when and to what extent the Employer's carrfer is lfable to pay costs of vision care for general use. Articles 18.2, 18.3 and 16.4 when read together and in light of the interpretation given in the Gillies case, GSB File #339/72 and Davidson case. GSB File #595/80. 0 seem to relegate to the realm of joint bargaining $he subj.::; r,att+r of which costs are‘to be borne by the Employer in respect to items of safety apparel or equipment needed for use during working hours. The parties have specifically addressed the requf rement of undergoing eye examinations and by whom the cost of such examination is borne. The purpose of such a provision presumably is to encourage employees to obtain a professional assessment of any underlying visual or ocular defects which could affect their ability to operate a V.D.T. wfthout discomfort and eyestrain. As the literature indicates. up to 30% of D the clerical population may have such defects which were hitherto undetected but which cause problems for the intense visual concentraMon required of's V.D.T. operator. In many cases, a prescription for corrective lenses with or without an anti-glare tint could be prescrfbed for use during working hours as a result of the eye examination conducted, although Ms. Heath indicated that most.operators find that the antl-glare screen suffices. The parties have addressed the issue of the Employer's obligation to pay for general vision care benefits in Artfcle 44.3 and that benefit has been pafd to the grievor. The fact that the parties have specifically ,addressed those benefits, gives rise to the implication that the parties did not intend that the full cost of eyeglasses required for use during operation of a V,.D.T. at work is to be borne by the Employer, However in assessing whether reasonable provfsion has been made for the safety and-health of employees at work, regard should be had to all the relevant circumstances. It should be borne In mind that the Employer has taken other measures through choice of the equipment design and location, training the operators on methods to reduce V.D.T. glare, providing anti-glare ~.:w~!~nr wnc: r;isjr availability was madg known (although too late for the grievor). Furthermore, the Employer relieved the griever from V.D.T. work In the short interval between her eye examfnation and . the fllling of her eyeglass prescription, to protect her from the effects of Dlare. As the memo dated August 26, 1985 from Mr. Casagrande indicates, anti-glare screens,.lead aprons and other equipment peripheral to the V.D.T. and its work station are. being supplied by the Employer, which can purchase such~equlpment at a volume discount for general use by V.D.T. operators. On the other hand, the type of prescription eyewear required and its attendant cost would have to be highly individualized to correct the particular defect identified thrrJgh an eye examSnat<on of the sort contemplated by Artfcle 18.6. In light of the other measures which the Employer has taken to protect the health and safety of its V.D.T. operators, the wording of the entirety of Article I8 and 44.3, and bearfng in mind the case law which has drawn a distlnction between ensuring that proper protective devices are worn and supplying and paying for such equipment, the Board concludes that the partles did not intend that the Employer should pay the full cost of prescription eyewear tailored to reduce glare and eye fatigue from operation of a V.D.T. during working hours. In the result, the Board concludes that no violation of Article 18.1 of the . collective agreement has been established from the Employer's failure to pay the full cost of the griever's eyeglasses. In consequence, the grievance Is dismissed. I’::EC t:-KingSron, this 16th day of September. 1987. vir man “I DISSENT” (see attached) Larry Rotmins, Member .pTJ&j&&c &3ii-& Michael 0’ ioole, member i 0 IN THE HATTER OF THE ARBITRATION BETWEBB: CROWN IN RIGHT (MINISTRY OF REVENUE) - and - O.P.S.E.O. IU THE MATTER OF THE GRIEVAWCE OF S. BOLTON - GSB PILE 952/05 DISSEUT I have reviewed the Award of the Chairman in this matter and with respect must dissent from it. I would agree at the outset with the statement that Article 18.1 is not mere surplusage, and that it import5 substantive obligations on. the Employer to make reasonable provisions for the safety and health of its employees and that this obligation exists over and above the other specific clauses in Article 18. I - Page 2 - . . The issue in this case is whether. the Employer's obligation to make 6UCh reasonable provisions for health and safety requires that they pay for the cost of Hs. Bolton's glasses in the circumstances of thi6 case. We heard some evidence on .the other measures that the Employer took in setting up the new OASYS System &nd~ in responding to Ms. Bolton's complaint originally. I would agree that there was nothing particularly.unreasonable in .the rest of the Employer's actions (although a fifteen month delay in placing anti-glare screens on the equipment leaves something to be desired, to say the least). But, in any event, what’ever else the Employer did is irrelevant for the purposes of this case. Because of the nature of Ns. Bolton's problem, the only way that she could operate the system 'in a safe and healthy manner was to wear the special glas,ses. These were glasses required solely for use on the V.D.T. machine. If you like, it was as if the griever required a special V.D.T. screen which in her case rested on the bridge of her nose rather than on the equipment itself. The test that must be answered is whether the Employer's refusal to pay is. reasonable in all of the circumstabces. If not, it would be a violation of Article 18.1. i - Page 3 - Regrettably, the Chairman has relied to some degree on making a distinction between the provision of safety equipment and the obligation to pay for it. In my view, that distinction can be a highly artificial one. Clearly the Employer has an overall obligation to make provision8 for health and safety and that obligation imports with it a cost. To use the Gonneau case. (GSB File 227/Sl) as an example (a case concerning snow removal which was relied upon by the Union), the Employer could hardly suggest that the employees themselves take a collection to pay for the cost of the snow removal. Similarly, it would be absurd . to have the employees in this case pay for the anti-glare screens yet they were clearly a further example of health and safety equigs5eot with a similar purpose to M. Bolton’e eyeglasses. It would therefore be very wrong to assume that Article 18.1 does not also entail certain costs even if they are not covered by some other clause in Article 18. To be fair, it’s not fully clear how far the Chairman is going with this distinction. If all that she is.saying is that the obligation to pay for certain equipment may not flow automatically from every Employer act ion in carrying out its responsibilities to provide a health and safe working . h : - Page 4 - environment, I could not disagree with that. But, if the, inference is that one should not find any obligation to pay for safety equipment unless it is spelled out in the most specific language of one of the other clauses, then I would vehemently disagree. The Chairman relies as well on two other cases, namely: OPSEU (Davidson) and Ministry of Natural Resources - GSB 595/80 and OPSEU (Union Grievance) and Ministry of Solicitor General- GSB File 1X1/84. Both of those cases appear to adopt a similar analysis, however, they both dealt with matters which were specifically covered by one of the other clauses in Artfcle 18, in one case clause 18.3 re safety boots and ia the otber clause 18.6 re eye examinations. In each of those cases, the Union was seeking the benefit in question for unclassified staff covered by Article 3 in the face of clause 3.15 whi ch makes it very clear that the clauses in question applied only to the classified staff and not to those employees covered by Arti cle 3. Presumably it would have been a simple matter for the parties to say that those sub clauses (18.3 and 18.6) applied to unclassified employees a5 well; But the case at hand is not of the~same character at all. We are dealing with a matter that is not dealt with in the specific provisions of Article 18. None of thoee provisions~ say that the Employer will pay for the costs of glasses in carrying out its health and safety obligations; on the other hand none of them say that the Employer will not pay. Before considering Article 18 in more detail I should deal briefly with Article 44.3, which I see as peripheral to the matter at hand. That clause makes reference to the vision care provisions of the Supplementary Health and Hospital Plan which is one of the benefit plans cover ing all employees. It has nothing to do ritb health and safety at the work plate, ~ and really sheds no light on the grievance. Article 44.3 simply makes it clear that vision care is part of the benefit package of employees. If this clause was not in the collective agreement it would hardly make He. Bolton’s case stronger. Clearly the .parties were not thinking of Article 18 at all when they were negotiating benefit plans which are the standard plans commonly found in collective agreemiznts. In the matter at hand, we are not dealing with benefit coverage or an Insurance Carrier. The question is simply one of considering a direct Payment made necessary by Article 18. Turning to Article 18, the Chairman has relied heavily on certain of the other clauses in ~that Article and by drawing analogies to those other clauses has decided that the parties did not intend to provide the payment in question in this case- With the greatest respect, I find that approach to be far to analytical. I would agree.of course, tBat one must look at Article 18 as a whole and not simply take one clause in isolation. Article 18.81 sets out an important general obligation on the Bmployer. Article 18.82 to 18.08 all provide various specific obligations. Some of those latter clauses deal directly with questions of cost and other do not. But, surely the intent of those other clause8 is not to lfmft the efficacy of Article 18.01 but only to deal with certain specific matters. There is a good zeason for this. prom a labour relations perspective, it would require an Article 18 as long as the telephone book to clearly set out every specific obligation which would be necessary for the Employer in fulfilling the general requirements of Article 18.01. Referring again to the Gonneau case, note that there is no speci-fit clause dealing with snow removal, however that matter was found to be covered by Article 18.01. To use another example, there is no specific clause under Article 18 dealing with the procedure for frisk searching inmates in correctional institutions. - Page 7 - However, in another Union Grievance, that matter was also found to be covered b’y the general language of Article 18.01 (see Crown in Right of Ontario (Ministry of Correctional Services) and Ontario Public Service Employees Union, R.J. Roberts, 27 LAC (3rd1, Page 233, November 28/86.) In the case of eyeglasses, the need’ for the glasses is based on the specific facts of the ~case. The Union has ndt argued that the Employer is required to pay for the cost of eyeglasses for all employees who use them in operating V.D.T. Terminals. The reaeonablenee6 of Me. Bolton’s claim is founded essentially on two factors: 1. The fact that she did not require glasses at all prior to the introduction of tbq 08SYS system. 2. The fact that she used the glasses solely while she was working at the V.D.T. Terminal, and that she never even took the eyeglasses home with her. It can be readily seen that it would be difficult to even write a clause into the collective agreement that would set out all of the circumstances where the Employer would pay for eyeglasses and those where they would not. For that reason, I don’t view the absence of a specific clause as showing the intention of ‘the parties not to pay for eyeglasses ever. Similarly, Article 18.6 which deals with eye examinations is in’ no way inconsistent with the Union’s position in this case. x,t may be that Ms. Bolton’s need for the eyeglasses first became apparent to her during an eye examination covered by Article 18.6. But it hardly follows that the mention of payments for eye examinations should be seen as an intention not to pay for eye glasses. That type of reasoning, which I suppose.is an example of the Latin principle espressio unius exclusio alterius is well known as being a particularly unreliable legal tool for collective agreement interpretation. The key question from a labour relations viewpoint is on whom is it reasonable for the cost of eyeglasses to be borne. I would note that the cost ior the Employer in this case for Hs. Bolton’s eyeglasses would be minimal (specifically, 8139.50). Moreover, it is not at all clear that there are hundreds of employees out there with identical.circumstances to that of the grievor. Mrs. Lynda Heath testified ,that, from her experience, the placement of anti-glare screens on the equipment and the a3justing of the equipment had resolved .pretty well all such problems, and this was the first case that she had heard where those measures were,unsuccessful and where the glasses were in fact required. On the other hand, the cost is not particularly minimal for a relatively low paid clerical worker. As Ms. Bolton requires the glasses to work at the V.D.T. Terminal, a new system put in place by the Employer, and as she has no other use for the glasses, it would seem eminently reasonable to me for the Employer to pay for the costs in the circumstances of this case. Therefore, the "reasonable provisions" which the Employer should have made as per Article 18.1 should have. included payment for the eyeglasses based on the facts of this case. For all of tbese reasons 1 would have allowed the grievance. Dated at Toronto, Ontario this 16th day-bf September I-987. All is respectfully submitted, / LARRY ROBBINS UNION NOMINEE